Yeung Yun Kwan v. The Queen

CACC000223/1981

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

CRIMINAL APPEAL NO. 223 OF 1981

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Coram: Bewley, J.

Date of Judgment: 22nd April, 1981

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JUDGMENT

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(Oral judgment reduced to writing)

1. The appellant was convicted of loitering contrary to section 160(1) of the Crimes Ordinance, Cap. 200, and resisting arrest, contrary to section 36(b) of the Offences against the Person Ordinance, Cap. 212. He was sentenced to 6 months on the first charge and to 3 months on the second, the sentences to run consecutively. He appeals against conviction only on the loitering charge and against sentence only on the resisting arrest charge, to which he pleaded guilty before the magistrate.

2. There is no merit in the appeal against conviction. Two police officers saw the appellant put his hand into the pocket of a man, who was looking at books in a stall in Temple Street. When the latter moved, the appellant went to another stall, followed by one of the detectives. Here the same thing happened, except that, when the victim moved, the appellant looked around and realized he was being observed. He hurried away, but was stopped and searched by the detective constable, who found 35 cents in his pocket.

3. Asked to explain what he had been doing, the appellant said he had been buying something, but could not tell the detective constable what it was. The latter told him what he had seen and asked for an explanation. When none was forthcoming, he was arrested.

4. The appellant gave evidence and said he was on his way to meet his friend in the park. He was accosted by the arresting officers and told he would be framed for loitering, unless he supplied information about drug dealers and offensive weapons. The friend, with whom he was living, was not called as a witness.

5. It was suggested that Temple Street is a crowded place at night, which is true, but the police officers must have been on the lookout for this sort of activity. They corroborated each other as to the first incident. The other detective constable did not see the second incident, as his view was blocked by passers-by. This is hardly the evidence of someone that is attempting to frame an innocent man.

6. The learned magistrate believed the officers and he disbelieved the defendant. There is nothing in the record that disentitled him from making such a finding. The ingredients of the offence were proved and, in the circumstances, the verdict was fully justified. The appeal against conviction is dismissed.

7. When the appellant was informed of his arrest, he pushed the detective constable, turned and ran, but was soon caught.

8. The appellant is 34 and has 6 previous convictions, all involving dishonesty or violence, and including one for resisting arrest.

9. The learned magistrate, in assessing sentence on both charges, took into account both this record and the allegations made against the arresting officer, which he found to be untrue.

10. I think the 6 months sentence on the loitering charge, though on the high side for this offence, was justified. It bordered on an attempt to steal, which the magistrate appreciated. The resisting arrest was, however, not a very serious matter. It was, of course, an assault, but there was no suggestion that the officer was hurt, or that the latter was seriously exercised to recapture the appellant.

11. A total of 9 months for these two offences is, to my mind, excessive. The appellant pleaded guilty to the second charge and he is entitled to some credit for this.

12. I propose, therefore, to allow the appeal against sentence, to the extent that a sentence of 1 month is substituted for the 3 months imposed below.

Representation:

Appellant in person

Miss Crebbin, C.C., for respondent