Fung Nai-mo v. The Queen

CACC001010/1980

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Coram: Bewley, J.

Date of Judgment: 31st December, 1980.

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JUDGMENT

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(Oral judgment reduced to writing)

1. The appellant was charged with desertion, contrary to section 28 of the Police Force Ordinance, Cap. 232. He joined the police on 1965 and in July, 1972, failed to report for duty. He was absent without leave until, on 6th November this year, he surrendered himself and his warrant card at Central Police Station. He pleaded guilty in the Magistrates Court and was sentenced to 3 months imprisonment. Against this sentence he now appeals.

2. Counsel for the appellant said in mitigation that he had deserted because he was being investigated by the I.C.A.C. The learned magistrate called for a probation officer's report. According to the probation officer, the appellant denied that this was the reason for his desertion. He admitted that he had been questioned about corruption and had returned home late one evening. This had led to a row with his wife. The appellant subsequently went out drinking and stayed the night in an apartment. But the real reason he had failed to return for duty during the next few days was that he had been gradually losing interest in his job in the Traffic Division, mainly because of irregular working hours.

3. The appellant obtained employment as a delivery worker and also worked on a construction site on a casual basis until 1974, when he secured a job as a clerk in the Kowloon Fish Merchants Association. Prior to his surrender to the police this year he was still holding this post. He also has a part-time job and now earns $2,400 a month. He lives with his wife and 3 small children. The probation officer interviewed a Mr. Cheung, who said that the appellant was a responsible employee. It was admitted before the magistrate that the reason the appellant had surrendered was because, under the recent legislation, he was unable to continue employment without an identity card.

4. The learned magistrate was reluctant to send the appellant to prison, both because of the long time that had elapsed since the original desertion and also because of the industrious and settled life that had been led by the appellant in recent years. He was persuaded, however, that the appellant's lack of contrition and failure to surrender his warrant card earlier made a prison sentence necessary.

5. Mr. Whitehead, who appears for the appellant, has referred me to the only reported case of this king. It is Pun Ying-chen⁽¹⁾, in which Briggs C.J. reduced the sentence of 12 months imprisonment to one that ensured the appellant's immediate release. That case concerned a police officer who had fled to Taiwan in 1975 after investigation for corruption. He returned in 1979 of his own free will and was arrested.

6. Pun's case, however, may be distinguished. The present appellant, if he wished to continue earning his living, had to obtain an identity card. He could only do so by surrendering. There were no other options open to him. He has not done so out of remorse, or for any other reason. Nor will a lenient sentence play a significant part in encouraging others in the appellant's situation to follow his example, which was the rationale of Briggs C.J.'s decision. Emoloyees must have an identity card: it is as simple as that.

7. Counsel also submits that it is wrong to impose a deterrent sentence on a first offender. He refers to Peter Curran v. R.⁽²⁾ and to Garthwaite v. R.⁽³⁾ That is true as a general rule, but this is an offence which, in practice, is never committed more than once by the same person. The maximum penalty is 12 months imprisonment. A sentence of imprisonment must, therefore, have been contemplated by the legislature as the appropriate penalty even in the case of a first offender. In such a sentence there is necessarily an element of deterrence to other police officers.

8. The learned magistrate took a serious view of the appellant's retention of his warrant card. I think he was justified in weighing this in the balance when deciding whether or not to impose an imemdiate custodial sentence. A police warrant card, which is misused or which falls into the wrong hands, can wreak much damage.

9. Finally, Mr. Whitehead submits that the sentence in all the circumstances was unjust. There are strong mitigating factors, of which the magistrate was well aware. He took them into account and it was with the greatest reluctance that he came to the conclusion that imprisonment was the appropriate penalty. In my judgment there would have to be exceptional circumstances to justify a suspension of this sentence and they do not exist in this case. For these reasons I am satisfied that the sentence is a proper one. The appeal is dismissed.

Representation:

Mr. Whitehead (Samuel Soo & Co) for appellant

Mr. Peter Conran, C.C., for respondent.

(1) Criminal Appeal 140/79

(2) 57 C.A.R. 1973 p.945

(3) Criminal Appeal 566/77