The Queen v. Man Chuen-min

CACC000302/1986

IN THE COURT OF APPEAL

BETWEEN

Coram: Hon. Li, V.-P., Yang J.A. & Penlington J.

Date of Hearing: 2nd October 1986

Date of Judgment: 2nd October 1986

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JUDGMENT

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Li, J.-P.:

1. The applicant was convicted on his own pleas on four counts of the indictment. The first count was burglary for which he was sentenced to four years imprisonment. The second count was assault occasioning actual bodily harm for which he was sentenced to two years imprisonment. The fourth count was using firearm to resist arrest for which he was sentenced to four years imprisonment. The 5th count was possession of firearms and ammunition for which he was sentenced to three years. The judge ordered that the sentences for the first, second, fourth counts be consecutive but the sentence for the fifth count be concurrent, making a total of ten years imprisonment. He now applies for leave to appeal against sentence on the grounds that it is manifestly excessive.

2. The facts in this case were that some time in a morning one Mrs. Sae returned to her home in Lai Chak House and found the door open. She discovered the applicant inside her home. At that moment the applicant was brandishing a chopper and was carrying a red bag, and he was running towards her. The applicant then put down the chopper and fled. That constituted the offence in the first count.

3. Mr. Sae immediately reported the matter. It so happened that police constable Ng was on patrol outside Lai Chak House. He saw a man carrying a red bag with some contents inside. The bag appeared to be heavy. He approached to inquire what vas happening. The man drew out a water-pipe and hit him on the head. There was a struggle. The police officer attempted to withdraw his revolver from the holster. There was a further struggle. Both fell onto the ground and a shot was accidentally fired. In the event, the assailant, the applicant, succeeded in snatching the gun. The blow on the head was the subject matter of the second count.

4. After snatching the gun the applicant hailed a taxi and was taken away. Alarm was raised. This was heard by two other constables, one on a motor cycle. They all gave chase. When the police officer on the motor cycle was drawing level with the taxi he saga the applicant brandish the gun towards him. The applicant also used the gun to force the taxi driver to drive faster.

5. In the event the applicant succeeded in his escape. That was the subject matter of the fourth count of using the firearms. He was charged with possession of firearm because that arose out of the same subject matter. In the event the applicant made good his escape by going into an industrial building. There was a search at the scene where the constable Ng had earlier struggled with the applicant. They found one water-pipe, a wallet containing the applicant's identity card.

6. The injury suffered by police constable Ng was a contusion on his chest, two abrasion wounds on both thumbs, swelling and limited movement of the left thumb. He felt tenderness in the occipital region.

7. Subsequently the gun was retrieved on information from a street mail box with two cartridges fired leaving 4 live rounds in the gun. That was subject matter of the fifth count. The second shot was discharged by accident.

8. On 3rd January this year the applicant was seen by the police. He was chased and caught. An interview took place. He admitted the burglary and ownership of water-pipe, the wallet and the identity card. He also gave an explanation that the gun shots were fired accidentally. Later on he was identified by the witnesses in the identification parade.

9. The applicant had 15 previous convictions, three of which was robbery. No useful purpose would be served by giving all the details. Suffice it to say that he was convicted of a robbery with aggravation in 1968, another robbery in 1975 and lastly a robbery in 1978 for which he was sentenced to 6 years imprisonment. It was in this light that he was sentenced to the total of 10 years imprisonment.

10. Prior to the sentence counsel for the applicant made a very eloquent plea in mitigation. It was said that the two of the previous robberies were nothing but snatching and that in one of them he only threatened the victim with a knife but there was no injury caused.

11. He was a small time criminal. He was 36 years old. Most of his life was spent in jail. He was an addict and needed money for the drugs. It was contended that he obtained the firearms not to commit further crimes but merely to evade arrest. All he did deliberately was the burglary. There was an eye-witness Poon who saw that the applicant struggled with bare hands and asked police constable for a chance. He was hit with a baton and he was told to surrender. It is argued that he took the revolver only in panic. He used the water-pipe in a panic and no serious injury was inflicted on the constable. He did not use the gun against the constable after he snatched it. He took it away in order to effect his escape. He merely forced the driver to drive faster for the purpose. He did on three occasions try to return the gun to the proper authorities without success. In the end he saw that the best way was to put the gun, wrapped in a piece of cloth, into a mail box. That was how the gun was recovered. The attack on the officer made in an attempt to escape. The return of the gun showed that he had some responsible inclination and was remorseful.

12. Learned counsel repeated all the salient points and emphasised the overall aspect of the sentences. We consider that a global sentence of 10 years is excessive. These offences were separate offences. They should be reflected by the proper appropriate sentence.

13. Taking into consideration his plea of guilty to all the counts in the indictment we feel that 4 years for the burglary as such was excessive and we would reduce it by one year to three. The assault occasioning bodily harm (having regard to the injuries received by the police constable was not being too serious, but we must discourage people who resist arrest with violence) merit a sentence of one year's imprisonment. As to the use of firearms 4 years is appropriate and correct. The fifth count of possession of firearms was in fact part and partial of the transaction of using that firearm. We feel that the concurrent sentence was correct.

14. We do want to indicate the court's consideration for people who are repentant as the appellant seems to have been by returning the gun. This must be encouraged. Even though it does not affect the sentence, the sentence should be reduced in principle to one year's imprisonment. We grant leave to the application to appeal against sentence. We treat the application as the appeal proper. We allow the appeal. The sentences are to be substituted for the sentences for the various counts. In count l there shall be imprisonment for three years, count 2 one year, count 4 four years, count 5 one year. It is further ordered that the sentences in count 1, 2 and 4 be consecutive and count 5 be concurrent. In short the total sentence of 10 years is reduced to one of 8 years.

Representation:

Mr. Sarony (D.L.A.) for Appellant

Mr. Simon Chiu (Crown Prosecutor) for Respondent