R. v. Tang Kai Wing and Others

HCMA000112/1994

IN THE COURT OF APPEAL

1994, No. 112

Magistracy Appeal

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Coram: Hon. Litton, J.A. (sitting as an additional Judge of the High Court):

Date of hearing: 18 March 1994

Date of delivery of judgment: 18 March 1994

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J U D G M E N T

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Litton, J.A.:

1. There are three appellants before me. They are Tang Kai-wing who was 16 years of age at the time of conviction, Tsang Chun-shan also 16 and Singh Gurpal who was 18 at the time of conviction. They pleaded guilty before Mr. Carlson at the Eastern Magistracy on 4 January 1994, in relation to the second and third appellants on one charge and in relation to the first appellant on two charges. The second and third appellants were sentenced to one year and nine months but the first appellant attracted an additional three months to be served consecutively to the first charge making a total of two years. They now appeal against these sentences.

2. The three appellants were in October 1993 undergoing training at a Training Centre at Cape Collison. On 15 October 1993 they attacked a prison officer employed at the Training Centre. They attacked him from behind, punched him on the head until he was unconscious and tied him up with a sheet. Before losing consciousness the officer was able to press the alarm on his walkie-talkie. In the meanwhile the first appellant managed to escape by climbing the fence. This led to the joint charge of assault occasioning actual bodily harm, contrary to section 39 of the Offences Against the Person Ordinance for which they were each sentenced to one year and nine months. The first appellant was additionally charged with escape from legal custody contrary to section 17(a) of Prisons Ordinance and was sentenced to three months consecutive to the first charge making a total of two years.

3. As to how these appellants came to be in the Training Centre in October 1993, the position was this. The first and second appellants had been sentenced to training in a Training Centre in 1993 for two separate crimes of robbery and the third appellant had been sentenced burglary and attempted burglary. They all have previous convictions in adult courts before the commission of the crimes which brought them to the Training Centre.

4. Their antecedents were carefully considered by the magistrate.

5. Being under 21 years of age, imprisonment for these appellants must be a punishment of last resort. In sentencing these appellants to imprisonment, the magistrate took into account the fact that if sentenced to imprisonment the effect under the Training Centre Ordinance Section 5A would be that on completion of their sentences they must be returned to the Training Centre for completion of their training. A factor which the magistrate quite rightly took into account is the fact that the crime was premeditated, the prison officer was badly injured to the extent that he was made unconscious, and then bound up, and the court must enforce the law in such a way as to protect prison officers from attacks of this kind.

6. I cannot see how the magistrate can be faulted in his approach. The magistrate took two years for each of these appellants as a starting point, gave a discount of three months for their guilty plea and sentenced them to imprisonment for one year and nine months. I see nothing excessive or wrong in principle in these sentences.

7. As regards the first appellant the crime under the Prisons Ordinance was a separate crime. Three months was not inappropriate. The magistrate was entitled to impose the sentence consecutively and I cannot see how that sentence can be disturbed. For these reasons the appeals must be dismissed.

Representation:

Lambert K.C. Lee (DLA) for 1st - 3rd Appellants

W.S. Cheung (Crown Prosecutor) for Crown