R. v. Tsui Ming Fai

CACC000418/1996

IN THE COURT OF APPEAL

1996, No. 418
(Criminal)

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Coram: Hon Mortimer and Mayo, JJ.A. and Sears, J. in Court

Date of hearing: 16 January 1997

Date of judgment: 16 January 1997

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J U D G M E N T

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Mayo JA giving the judgment of the Court:

1. The applicant pleaded guilty to a s17 wounding charge and was sentenced to 2 1/2 years' imprisonment by Her Honour Judge Beeson. He now seeks leave to appeal against that sentence.

2. At the time of the offence - 9 January 1994 - the applicant together with two other men was on board a speedboat which was being used to smuggle television sets. The speedboat was sighted by members of the Anti-smuggling Task Force who were on board a fast pursuit craft. They signalled the speedboat to stop but their signals were ignored. They chased the speedboat and were able to come alongside it. Two of the members of the Anti-smuggling Team boarded the speedboat and attempted to stop it.

3. All three men on the speedboat resisted the arrest. In particular the applicant picked up a metal chopper and swung it at the head of one of the officers who was lying on top of a green canopy trying to cut off the supply of fuel to the engine of the speedboat which was still travelling at high speed.

4. One of the other officers on seeing this warned the applicant that if he did not desist from this attack he would be shot. He did not heed this warning and two shots were fired. One of which hit the applicant.

5. It caused quite serious injuries and to a slight extent the applicant is partially paralysed. He was treated in hospital for his injuries.

6. The applicant was allowed police bail so as to enable him to continue receiving medical treatment. He absconded in January 1994 and surrendered himself to Sai Kung Police Station in April 1996.

7. Judge Beeson adopted three years as a starting point for this offence. She did not however give the applicant the full discount of 1/3 as he had absconded.

8. In his grounds of appeal the applicant refers to the pain and suffering he has had as a consequence of the injuries he sustained. He also referred to the lighter sentences which were imposed upon the other men who had been on the speedboat.

9. No question of disparity of sentences arises as the other defendants were not charged with the assault.

10. The only other question which remains outstanding is whether the applicant forfeited some of his entitlement to his discount for his plea by absconding while on police bail.

11. We consider that he did. The sentence was neither manifestly excessive nor wrong in principle and this application is dismissed.

Representation:

Mr Kevin P. Zervos, Senior Crown Counsel for the Crown

Tsui Ming Fai - Applicant in person/present