The Queen v. Leung Wai Ming

HCMA000199/1992

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY CRIMINAL APPEAL NO. 199 OF1992

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BETWEEN

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Coram: Hon Penlington, J A. In Court (Sitting as an additional High Court Judge)

Date of hearing: 23 April 1992

Date of delivery of judgment: 23 April 1992

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J U D G M E N T

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1. These are appeals against conviction and sentence.

2. The appellant was convicted on one charge of loitering, two charges of resisting arrest and one charge of possession of an offensive weapon.

3. The background of the case, which is set out in a very full statement of findings, was that a young lady, Miss Chan Yuen Han, who lived in 1052 Canton Road, 1/F, was going home in the early hours of the morning on 22nd November 1991 when she saw a man in the staircase of her apartment block following her. She identified him as the appellant. She said she was frightened because of his presence and that after she gone past him she looked back and she saw what seemed to be the shadow of a person on the landing. Because of the shadow she did not proceed but went back into the street. However two police officers came along and she told them what had happened and when she was talking to these officers the man came down the stairs. He was stopped by these officers and it was her evidence and those of the officers that a fairly violent struggle then took place. She said that during the course of the struggle something fell from the body of the appellant which she said was a knife. That evidence was supported by that of the police officers. Eventually the appellant was subdued and asked why he was in the building. He gave no answer.

4. The appellant gave evidence himself and denied that he resisted arrest or that he was loitering in the premises for any unlawful purpose. He said that he had been in the stairway because he was looking for a friend. He said that the knife only came to light during the course of the struggle and that it must have been lying amongst some rubbish which was in the corridor. He said that far from resisting arrest it was him who was assaulted by the police officers and as a result was in hospital for two days. A medical report was produced.

5. The trial magistrate said he was satisfied that Miss Chau had given credible evidence and that the appellant had resisted arrest in order to avoid apprehension and to conceal the knife. He found the police officers also to be credible witnesses. He considered that the injuries suffered by the appellant were consistent with the evidence given of a fairly violent struggle.

6. The appellant here says that it was not possible for that to be a shadow, that he visited the scene subsequently and the lighting was such that no shadow would be shown. He also refers to the evidence of the young lady and points out that her evidence was that the object seemed to be a knife and that she was not certain of its colour. He also refers to the fact that the knife was apparently in a paper sheath which was not referred to by Miss Chau.

7. This whole matter is essentially one for the trial magistrate to accept or reject the evidence that was before him. He accepted the evidence of Miss Chau and the police officers and rejected that of the appellant. He has come to the conclusion that the appellant was loitering in the vicinity of the staircase and had no legal proper reason for doing so, that he did resist arrest and that he was in possession of a knife and he convicted the appellant on each of these charges.

8. Having considered the record and the very careful and detailed reasons for the verdict and having considered what has been said to me today by the appellant I see no reason to regard these convictions as anyway unsafe or unsatisfactory, and the appeal against convictions are dismissed.

Sentence

9. The appellant appeals against his sentences of four months' imprisonment in respect of the loitering and of the two charges of resisting arrest and of 12 months in respect of the possession of the offensive weapon, all to be served concurrently. The appellant did not admit any of these offences and has two previous convictions for possession of an offensive weapon in a public place as well as one of loitering, The last conviction was in 1986.

10. The trial magistrate said he had taken into account the fact that all offences flowed from basically one incident and said that he was satisfied that the appellant had been loitering and waited for Miss Chau, and that he was armed with an offensive weapon. I consider that the sentences passed totalling 12 months' imprisonment were, considering the appellant's previous record, if anything lenient. The appeal against the sentences is also dismissed.

11. Before leaving this matter I would only add that the trial magistrate has, with great diligence, recorded in considerable detail in his statement of findings, almost all the evidence given by each witness, a transcript of which was of course also prepared. While some reference to the evidence is naturally necessary, .it is seldom necessary to set it out again in such detail but only to record what evidence was accepted, what was rejected and, if required, the reasons for doing so.

Representation:

Appellant, Leung Wai Ming, in person

Paul Leung for Crown