The Queen v. Chan Wah Shing and Another

HCMA001586/1990

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO. 1586 OF 1990

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BETWEEN

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Coram: Hon Ryan J. in Court

Date of hearing: 19 February 1991

Date of delivery of judgment: 19 February 1991

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JUDGMENT

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1. The appellants Chan Wah-shing and Ngai Ma-ka were convicted on two charges, the first obstructing a police officer in the execution of his. duty, and the second of assaulting a police officer. They were sentenced to six months' imprisonment on the first charge and three months' imprisonment on the second charge, the sentences to be served consecutively.

2. The facts were that on the 5th day of April 1990, a uniform police constable was on foot patrolled at Fu Shin Estate in Tai Po. He observed the appellants with a younger man and approached the group with an intention of checking their identity cards. The younger man could not produce an identity document and when the police officer indicated that he would take him back to the Police Station for a check, the appellants used the cycle which was being wheeled by the 1st appellant to obstruct the police officer enabling the young man to escape. The obstruction developed into an attack by both appellants on the police officer who was punched, kicked, knocked down and suffered a number of. relatively minor injuries.

3. The appellants appealed against both conviction and sentence but before me have abandoned the appeal against their convictions.

4. The magistrate quite properly found that the obstruction was a serious matter involving, as it did, the assistance in the escape of the young man whom the officer believed to be an illegal immigrant. He further considered the assault to be such as to justify a term of imprisonment of three months. He acknowledged. that the assault was to facilitate the obstruction but then went on to say that he considered them to be two separate matters. He, accordingly, ordered that the sentences be served consecutively. It is a sentencing principle that offences which arise from the same incident justify an order that the sentences be served concurrently.

5. Having observed that the assault was to facilitate the obstruction, the magistrate would appear to have wavered from that principle. However, I am satisfied that when one looks at the totality of these sentences, involving as they do the obstruction of a police officer endeavouring to apprehend a person whom he believed to be an illegal immgrant and an assault upon a police officer endeavouring to do his duty resulting in physical injuries to that officer, I do not consider that these sentences are in any way inappropriate. They are if anything in totality in my view on the light side.

6. The appeals against sentences are therefore dismissed.

Representation:

Miss S.L. Opai, Crown Counsel, for Crown

Mr R. Wu, inst'd by M/s. Anthony Au & Co. for 1st Appellant and inst'd by DLA for 2nd Appellant