Poon Leung Alias Poon Wan and Others v. The Queen

CACC000315/1971

IN THE SUPREME COURT OF HONG KONG

(APPELLATE JURISDICTION)

CRIMINAL APPEAL NO. 315 OF 1971

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Coram: Briggs, Ag. Senior P.J. in Court

Date of Judgment: 23rd July, 1971

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JUDGMENT

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1. The four appellants were tried together for various offences of burglary, impersonation of and assault on a police officer and of being in possession of an offensive weapons. The offences arose out of an incident which occurred at the Federal Theatre in Fuk Wing Street, Kowloon on February 21st this year. They were all convicted and have appealed against their conviction. They also appeal against the sentences passed upon them.

2. Looking at the facts of the case as a whole it is surprising that the appellants were charged with burglary. I say this because three of the four appellants are first offenders and this would have been a most suitable case in which to pass a suspended sentence. However that is not possible upon a conviction for burglary which is one of the offences excepted from the operation of Section 109B of the Criminal Procedure Ordinance. On the facts of the case it would have been possible to have charged the appellants with several other offences, for example affray or assault.

3. On February 21 1971 at about 10 p.m. and while a performance was in progress the second and fourth appellants entered the Federal Theatre and there confronted the Manager. They asked if they could see the film but the Manager said they could not do so unless and until they had purchased tickets, which they apparently had not done. They threatened to beat up the Manager who was put in a state of fear. The Manager rang up a Police Corporal who came round to the theatre. He disclosed his identity to the two appellants: who thereupon roughed him up and struggled with him.

4. A fight ensued and the Manager received injuries to his head. Both the appellants were armed. The Corporal caught hold of the fourth appellant and arrested him and handcuffed him. The second appellant ran off but returned with the first and third appellants.

5. The first appellant upon his arrival at the theatre stated that he was a police officer which was not true. His purpose seems to have been the rescue of the fourth appellant who was one of his employees.

6. The first and second and third appellants all struggled with the Corporal until the arrival of a police party. The four appellants were arrested and it was found that each one of them was in possession of either a knife or of a triangular file.

7. Each of the appellants was convicted of being in possession of an offensive weapon and sentenced to one month's imprisonment which had been served by the time the appeals came before me. In my opinion they were rightly convicted and their appeals against conviction and sentence on those charges are dismissed. Each appellant was also convicted of assault on a police officer and sentenced to one month's imprisonment which was expressed to be concurrent with the other sentences passed. Again I think that there was ample evidence of their guilt and their appeals against conviction and sentence on that charge are also dismissed.

8. The first appellant was convicted of the offence of impersonating a police officer and was sentenced to one month's imprisonment also concurrent. The evidence as to this appellant's guilt on this charge was also clear and his appeal against conviction and sentence on this charge is also dismissed.

9. The first, second and third appellants were convicted of burglary. The particulars of the offence as charged were that these three persons entered the theatre as trespassers "with intent to inflict grievous bodily harm" on the Manager.

10. The second appellant was a trespasser in the theatre. He threatened the Manager that he would beat him up. While the Police Corporal was engaged in a struggle with the fourth appellant he ran out of the theatre and returned with the first and third appellants. And he was armed with an offensive weapon.

11. The Magistrate inferred from this that his intention was to carry out the threat he had made, namely to inflict some serious harm on the Manager. I think that the Magistrate was entitled to draw that inference from the facts and the appeal against conviction of the second appellant on this charge is dismissed.

12. He was sentenced to imprisonment for 9 months. He is a first offender and is aged 28. He was not the ring leader. He has been in custody since April 8 1971. In my view as I have already said, this appellant should have been charged with an offence which could have allowed of the imposition of a suspended sentence. Taking all the circumstances into consideration the sentence will be reduced so as to allow his release at the rising of the Court.

13. The first and third appellants were also convicted of burglary. Mr. Paul Fok argued on their behalf that their convictions could not stand because there was no evidence that they went into the theatre "with intent to commit grievous bodily harm" as is stated in the charge. I think he is right. There is evidence from which it can be inferred that they went into the theatre for an illegal purpose and that they were armed. They certainly tried to effect the rescue of the fourth appellant and assaulted a police officer while doing so. However it cannot be inferred from the evidence that they went to the theatre in order to inflict grievous bodily harm on the Manager. They did not use their weapons on the police officer nor on the Manager. The assault was with their hands, a struggle. And even if an inference is drawn that they went into the theatre with intent to use the weapons which were found on them there is no evidence that they intended to commit grievous bodily harm. Some harm, may be, but not grievous bodily harm.

14. The appeals of the first and third appellants on the charge are allowed and their sentences on this charge set aside.

15. There remains the conviction of the fourth appellant on another charge of burglary. The particulars in this instance are that he entered the theatre as a trespasser and did inflict grievous bodily harm on the Manager. The appellant threatened the Manager and, using an ugly weapon, inflicted injuries upon his head. However fortunately the Manager did not suffer as severe injuries as might be expected. From the evidence a clear inference may be drawn that the appellant intended seriously to injure the Manager. The Manager certainly was of that opinion and was both hurt and frightened. In my view the correct particulars of the charge need amendment. They read "did inflict grievous bodily harm" this must be altered to "attempted to commit grievous bodily harm". I will make such an alteration. In those circumstances the conviction of this appellant on this charge as amended is upheld and his appeal dismissed.

16. The fourth appellant was sentenced to 15 months' imprisonment. He is said to be 28 but his Criminal Record Form states his age as 32. He has three previous convictions the last of which was in 1968. Though those convictions are for larceny and housebreaking they are quite dissimilar to the present offence which though called 'burglary' is more in the nature of an affray or an offence coming under the Offences against the Person Ordinance. Those previous convictions should have been ignored in my view. This appellant was in steady employment as a driver at the time this offence was committed. He has kept himself out of trouble for three and a half years. And he has been in custody since April of this year. In these circumstances I think it right to substitute a sentence for 9 months for the sentence passed by the Magistrate. It is to run from the date of conviction.

17. The time spent in custody awaiting the hearing of the appeals of all of the appellants is to count towards their sentences.

Representation:

Paul Fok (Francis Chaine & Co.) for all Appellants

Winter, Crown Counsel for Respondent

Judgment of 16.7.71 reduced to writing