Yiu Mao-sui v. The Queen

CACC000248/1982

BETWEEN

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Coram: McMullin, V.-P., Li & Yang, JJ.A.

Date: 20 August 1982

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JUDGMENT

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McMullin, V.-P.:

1. Two men were arrested by the police when discovered in the vicinity of No. 27, Lan Fong Road on the 30th of September 1981. They are SHUM Cheuk-chung, who became the 1st defendant, and YIU Mao-sui, the 2nd defendant who is the present applicant/appellant.

2. They were charged before the court upon a number of charges. They were charged jointly with assault with intent to rob at Fai Lok Apartment House in No. 27, Lan Fong Road. Each then faced a separate charge of loitering, contrary to section 160(1) o￡ the Crimes Ordinance and the present applicant/appellant faced, in addition, a charge of resisting a police officer in the lawful execution of his duty:

3. Little need be said about the conviction upon the 1st count. The let defendant did originally appeal against his conviction for loitering and for assault with intent to rob but since has abandoned his application.

4. YIU Mao-sui, the defendant who is presently before the court, applied for leave to appeal against his convictions and sentences on the let count - assault with intent to rob - the 3rd count - loitering and the 4th count - resisting arrest. He had received sentences totalling 6.5 years to which I will return later.

5. He was given leave in respect of the 1st count as regards conviction but refused leave to appeal against conviction on counts 3 and 4, the loitering and resisting counts. He pursues in this court his appeal against conviction only and he renews his application for leave to appeal in respect of counts 3 and 4, in relation to both conviction and-sentence. The facts may be briefly recited.

6. A night caretaker in the Fai Lok Apartment House in Ian Fong Road admitted two men at about 4.35 a.m. on the 30th of September. Details were noted in the register in the usual way and the men were shown to Room 3. A short time after that one of the men came out and summoned the night caretaker complaining that the air-conditioning was not functioning properly. As soon as the caretaker entered the room, he was seized by the two men who endea-voured to overpower him. He struggled and managed to free himself sufficiently to roll under a bed. At this point it would appear that the two men panicked and ran away. That evidence was given by the night caretaker. He purported to identify both of the men who had been involved and who were arrested a short time after the event.

7. We are not concerned with the original 1st defendant.  The identification of the present defendant took place in the Tang Shui Kin Hospital where the complainant said that he identified the present defendant who was then lying upon a stretcher in a corridor at that hospital.

8. The remaining evidence in respect of the 1st count and the evidence relating to the loitering and resisting counts was given by several police officers. They described hour they had been on patrol along Ian Fong Road. They observed two men who appeared to be dressing themselves on the staircase leading up to the first floor of No. 27 where the apartment house was situated. They suspected that the men were engaged in some activities relating to dangerous drugs. They approached the men and seized one of them but the other ran off and was pursued by one of the police officers for a considerable distance. He was eventually captured in the vicinity of the Tramway's Depot, According to the police officer who arrested him - P.C. Poon there was a brief, violent struggle in the course of which he and the defendant fell to the ground. He used his truncheon to subdue him and then took him back in a police car, with some other police officers who came to the scene, to the apartment house. This man is the present applicant/appellant. The police officer himself was slightly injured in this struggle and he and the defendant were taken to Tang Shui Kin Hospital.

9. The apartment house caretaker was taken to the same hospital. It appears he was an asthmatic who had suffered some degree of shock in the course of the attack upon him and he received treatment in the hospital on the same night. It was while he was there that he purported to identify the present defendant as the man who had-signed the register and had initiated the request for the room in the apartment house.

10. If the identification evidence had been all that was -available to the Crown to support the count of assault with intent to rob, the case would have stood in a very different position. Because although the complainant, when giving evidence in court, purported to identify the defendant as the man in the corridor, there was an identification parade held on the same day at which he failed to pick out this defendant who was, it is agreed, upon the parade.

11. However, the identification evidence was amply supported by the production of a right forefinger print which was examined very shortly after the occurrence. It had been taken from a bottle of water on the bedside table in Room No. 3. That print turned out to be the right forefinger print of the defendant. An explanation was given for that by the defendant when giving evidence but that explanation did-not find favour with the judge nor do we intend to refer to it now. Mr. Mullick concedes that the judge was justified in coming to the conclusion that he did. Although leave was given by the single judge to appeal against conviction upon this count, that was done on the basis that the dock identification should not have been permitted in view of the failure to identify at the identification parade. We think that although there is substance in that objection, the-matter is clinched by the fingerprint evidence.

12. Mr. Mullick takes a point in respect of the loitering conviction for which the defendant received a consecutive sentence of 6 months. The circumstances which were said by the prosecution to support that count consisted of the observations of the police officers who came upon the two persons dressing themselves in the stairway of No. 27. Counsel asks us to say that those circumstances, on their own, do not constitute an offence under section 160 of the Crimes Ordinance. He suggests that loitering in its legal extension implies observation of the acts of the accused person which would extend over some period and satisfactory evidence of which would not be constituted by mere observation at a moment of time that somebody had stopped in a particular position. Some support for that idea is given both by the legal and the ordinary dictionaries, but the principal objection taken to this conviction, and one to which Mr. Jackson for the Crown is prepared to concede - indeed he has put the matter to us in this way himself - is that a conviction for loitering, under the circumstances then observed, would have the effect that the defendant would be twice punished for what is only a single course of criminal conduct. That is so, it is said, because the section demands two things to be shown. One is' something which would conform with the description o￡ loitering and the other is a failure on the part of the person observed to loiter to give a satisfactory account of his movements. In the circumstances of the present case, it is said that the only satisfactory account would have been the true one.

13. Albeit a shade ingenious, the objection is not without substance.  Perhaps the real objection is rather that such a charge was inappropriate having regard to the circumstances generally. Moreover if it can be said that the defendants were doing anything at the moment that they were observed, it should rather be said that they were doing their best not to loiter since in putting on their clothes, presumably hastily taken with them from the apartment house, they were doing so preparatory to making good their escape.

14. We, there fore, treat the application in respect of that count, as the hearing of the appeal. We set aside the conviction on the loitering charge and the sentence will likewise beset aside.

15. So far as the resisting of arrest count is concerned, the evidence as to that was perfectly clear and indeed Mr. Mullick does not make any strong contention in relation to it. The conviction was clearly justified. I turn now to the question of sentence.

16. Firstly the major sentence - the sentence on the 1st count. This defendant has a clear record as had the 1st defendant. Nothing is said in the Reasons for Sentence by the District Judge for differentiating between the cases of the two defendants. Yet a sentence of 4 years was imposed upon the other defendant as distinct from the 5 years imposed upon the present defendant. We think that in a case where two defendants are tried at the same time for the same offence and where the circumstances do not disclose any significant difference in the degree of participation shown by each in the crime charged, and where, in matters of record, they are upon an equal footing, to impose, without comment or explanation, a sentence upon one of them greater than that imposed upon the other is wrong in principle.

17. In the absence of any explanation as to the reason for this disparity, we feel obliged to interfere. The application for leave to appeal against sentence on the 1st count is treated as the hearing of the appeal and we allow the appeal to the extent that for the term of 5 years upon the 1st count we substitute a term of 4 years only.

18. That leaves only the count relating to resisting arrest. Mr. Mullick has endeavoured to argue that this is a disproportionately large sentence in relation to the actual circumstances disclosed. The maximum for the offence is two years. We cannot agree. There was a prolonged chase and a vigorous struggle and the defendant, in the course of trying to get away, managed to inflict some degree of injury both upon the person and clothing of the arresting officer who was, in fact, taken to the Tang Shui Kin Hospital for treatment on the same night. It was therefore a -fairly bad example of this offence. While we would not say that it would deserve anything greater by way of sentence, we cannot say that the sentence imposed was excessive. The appeal against that sentence is therefore dismissed.

Representation:

John Mullick (David Y.K. Tsang & Co.) for Appellant

C.G. Jackson for Respondent/Crown