The Queen v. Chan Sik-ping

CACC000403/1984

[Sentence: Drunk: reckless discharge of firearm: Police Officer: observations on the carrying of arms by off duty officers.]

IN THE COURT OF APPEAL

BETWEEN

Coram: Yang, Silke & Barker, JJ.A.

Date of Hearing: 25th October 1984

Date of Judgment: 25th October 1984

__________

JUDGMENT

__________

Silke, J.A.:

1. The applicant was convicted, after trial in the District Court, of two offences. The first: being drunk while in possession of a loaded firearm, contrary to section 28 of the Summary Offences Ordinance and the second: the dangerous or reckless use of a firearm, contrary to section 22 of the Firearms and Ammunition Ordinance. He received a sentence of 3 months on the first count on the charge sheet and 2½ years on the second count, the sentences to run concurrently.

2. He now seeks leave to appeal against those sentences.

3. At about 5:15 in the morning of the 14th April 1984, at the junction of Cheung Yee Road, the applicant, a Detective Sergeant, drew his service revolver. He forced a taxi driver at gun point to lie upon the ground and he fired three shots from that fully loaded revolver. One of those hit the windscreen of a goods vehicle which had been stopped by him. The other shots were fired after he had stopped other traffic and after persons in the vehicles, and those in the vicinity, had fled to avoid his actions.

4. Earlier that evening he had, according to a statement he made on the evening of his arrest, been drinking with some friends of his and had got drunk. It is clear that he was very drunk. Some two hours after the incident he was found to have a blood alcohol content of 300/100 which is indicative of an advanced stage of intoxication.

5. At the trial it was contended that first, he had not drunk so much and second that, because he was with women who were susceptible to drugs, his drinks might have been "spiked". Those contentions were disbelieved. In the light of the statement he himself made - as I have said, he is a Detective Sergeant and of some sixteen years standing - it is not surprising that they did not find acceptance by the District Judge.

6. It has been submitted by Mr. Chong, who appeared on his behalf in this Court, that the totality is a deterrent sentence passed on a first offender. He says that the sentence of three months' imprisonment imposed on the first count, where the maximum is one of six months, is indicative of the state of mind of the Judge in imposing his overall sentence. Further that his Reasons for Sentence make it clear that the Judge had in mind a deterrent sentence. He has also submitted to us that the applicant was so drunk that he had lost control of himself and there can be no moral blameworthiness. But that is a factor, the very high state of self induced intoxication, which we must bear in mind in considering the sentence passed and its quantum. It is also Mr. Chong’s contention that there can be no possibility of a repeat performance.

7. He has referred us to the second paragraph of the Reasons' for Sentence where the Judge said:

"These are serious offences particularly the second one and must carry immediate custodial sentences."

He prayed the word "must" in that sentence in aid of his contention that the trial judge at all times thought, first that he must give a sentence of imprisonment and, second that that sentence must be a deterrent one. We do not agree with these submissions. An immediate custodial sentence was warranted by the applicant's conduct.

8. We do not think the sentence imposed to be either too long nor do we think it in any way disproportionate to the seriousness of these offences.

9. The applicant was a man of considerable service in the Royal Hong Kong Police Force. He had received commendations. It is customary for members of the CID to carry their revolvers when they are off duty. When they have to do so they must behave in a responsible manner. This the applicant here signally failed to do.

10. As was said by Kempster, J. (as he then was) in a Magisterial Appeal⁽¹⁾ where another member of the Force had drawn his gun in circumstances in which he should not have done so:

"The appellant's conduct must be a matter of concern both to the Secretary for Security and to the Commissioner of Police in the context of an overall policy allowing plain clothes officers to carry small-arms at all times.

With respect we would endorse those sentiments.

11. It is correct that the applicant will almost certainly be dismissed from the Force and will consequen-tially lose any benefits which might have accrued to him through his employment, and that includes the quarters in which his-wife and his three year old child live. But we must bear in mind the nature of the man who committed this offence and the nature of his employment. It is necessary to underline the public opprobrium for the dangerous and reckless conduct disclosed by the evidence of a member of the Royal Hong Kong Police Force.

12. As I have said, we do not think that this was a sentence in the nature of a deterrent. We think it was a proper sentence and the application for leave to appeal against sentence will be refused.

(1)    Magisterial Appeal No. 198 of 1984

Representation:

K.M. Chong, Esq. instructed by Messrs. Chan & Yung for the applicant.

A.P. Duckett, Esq., Q.C. with Miss Mary Tam for Crown/ Respondent.