Wong Lap-chee and The Ohter v. The Queen
Read the full judgment text of CACC 220/1978 on BabelCite. This Court of Appeal judgment.
1. This case is fraught with difficulties. In 1974 a constable went to a room in a housing estate and was concerned to make investigation into an allegation of wounding. He went into a room where there were three youths. It is admitted that he did not reveal his identity to those youths. According to the prosecution story the brief facts of the case - which were at first admitted by the defence - the officer had previously searched these young men in the street. He made a telephone call from tha
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CACC000220/1978
----------------- Coram: Huggins, J.A. Date of Judgment: 20th March, 1978. ----------------- JUDGMENT ----------------- 1. This case is fraught with difficulties. In 1974 a constable went to a room in a housing estate and was concerned to make investigation into an allegation of wounding. He went into a room where there were three youths. It is admitted that he did not reveal his identity to those youths. According to the prosecution story the brief facts of the case - which were at first admitted by the defence - the officer had previously searched these young men in the street. He made a telephone call from that room to his superior officer, so that it would be apparent that he was a police officer, and as he was leaving the room he was attacked from behind and seriously beaten up. Not only that, but thereafter his service revolver was taken from him and he was handcuffed to the railing outside the room. The revolver was not stolen. 2. These two Appellants were not arrested until some three years after the offence: the other man was arrested, and was sentenced to eighteen months' imprisonment in 1975. So the first difficulty we have is that there is a long gap between the arrest of these two men and of their companion. Then we have the fact that the mitigation advanced on behalf of these two Appellants challenged some of the evidence which was in the Statement of Facts and which had been accepted, and the conflict was never resolved. According to the solicitor who appeared for the Appellants in the court below the victim entered the premises, patted one of the occupants, apparently without saying anything, and a dispute then arose. What the dispute was we are not told but even at that time it is said the identity of the police constable was not known: there was a struggle and it was only during the struggle that his identity became apparent because the revolver and the handcuffs were found. It is unfortunate that these matters of fact were not resolved. 3. There is the further difficulty, a difficulty which I am sure the learned magistrate himself felt, that this is a case where a suspended sentence is not open. In my view it is a case which clearly called for a suspended sentence of imprisonment, but I have to do the best I can in all the circumstances, and first question is Was the learned magistrate wrong in the view that he took? He had this difficulty I have mentioned already, that one man had been sentenced to eighteen months' imprisonment and that these two Appellants because they had successfully evaded the law for three years were able now to come forward and show that they had behaved themselves during the last three years and were not persons of criminal tendency - therefore, that it was a special hardship on them if they were now sent to prison for something which they did when they were only twenty-one years old. It must be emphasised that one of them has since married, had two children and therefore has family responsibilities. 4. No one is more anxious than I to ensure that the police have every possible protection in the carrying out of their difficult duties. However, the fact is that here was an officer who went into a room without clearly revealing his identity. It is difficult to believe that it did not become apparent that he was a police officer earlier than was suggested in mitigation but that is what was said and the dispute was never resolved. With some considerable hesitation I think that I ought to accept the matter as it was left, namely, that the solicitor asserted on behalf of his clients that these two Appellants did not know until the struggle took place. Now, of course, the position still was that these two young men deliberately took away a police officer's revolver and subjected him to the indignity of being handcuffed to the railing outside. The explanation they gave was that they realised at that time that they were in big trouble and they thought that they could escape that trouble by this further action. It was a very silly thing to do. It was no doubt a criminal thing to do, but I am not persuaded that at this stage the public interest will be served by keeping these young men in prison for the remainder of a six months' term of imprisonment. I agree with the learned magistrate that if this was a deliberate attack upon a police officer from the start it was a very serious case, but that is not the basis upon which sentence falls to be passed. As I say, it is with considerable hesitation that I interfere in this case but I think that justice will be done if I substitute, instead of the suspended sentence which, in my view, would have been the proper sentence here, a sentence of conditional discharge for a term of two years. 20th March 1978. Representation: |