The Queen v. Lee Wai Ki

Case No.CACC 422/1991

Court

Court of Appeal

Date—

Judge—

Case Document

100%Judiciary

CACC000422/1991

IN THE COURT OF APPEAL	1991, No. 422
	(Criminal)

BETWEEN
	THE QUEEN

	AND

	LEE WAI KI	Applicant
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Coram: Hon. Sir Derek Cons, Ag. C.J., Power 5 Macdougall,, JJ.A.

Date of hearing: 12th May 1992

Date of delivery of judgment: 12th May 1992

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J U D G M E N T

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Sir Derek Cons, Ag. C.J., delivered the judgment of the Court:

1. Lee Wai Ki ("the defendant"), who is now aged 27 years, has been in trouble over motor vehicles since the age of 16, when he was put on probation for stealing such a vehicle. Since then has been convicted many times of the same or similar offences. He has been placed on further probation, has been sent to a detention centre and a training centre. He has been convicted of other offences as well. He has been fined and given suspended prison sentences, and on one occasion an actual prison sentence.

2. On 5th May 1990 he was convicted of driving while disqualified, sentenced to six months' imprisonment suspended for two years. Two months later, on the 20th July and while still disqualified, he was driving a car at 2:45 in the morning and which happened to be one of three vehicles stopped by uniformed police at a road block in Salisbury Road, Kowloon. The further facts we take from the summary given to the judge in the court below:

" Officers approached the three cars to ascertain the details of the drivers.

PC 2964 Lee Wai Choi went to the defendant's vehicle and spoke to him through the open driver's window. PC 2964 asked for the defendant's driving licence and his identity card. The defendant took out his wallet and started to fumble with it.

By this time, the vehicle immediately in front of the defendant had moved to the inside lane. The defendant's car was then at the head of the queue. The engine was still running.

Suddenly the defendant put the car in gear, demonstrating a clear intention to drive off. PC 2964 attempted to grab the steering wheel with his left hand through the window. The defendant's car accelerated away. PC 2964's arm was trapped. He was pulled along. He tried to put his right hand inside to seize the driver, and to save himself. He could not get his hand inside. The defendant had wound up half way the driver's window.

As the defendant continued to drive down the road he swerved to the central barrier. The driving of which resulted in PC 2964 striking against the central barrier.

PC 2964 was at the time wearing a motor cycle crash helmet. During the dragging', the helmet eventually collided with the driver's window so as to smash the glass. PC 2964 was thus released, and fell onto the roadway. He had been dragged approximately 100 metres.

PC 2964 sustained serious injuries. He was immediately admitted to the Queen Elizabeth Hospital for an emergency operation ...".

3. The defendant was arrested on 6th August. In due course he was indicted on three counts:

(1) causing grievous bodily harm with intent, contrary to s. 17(a) of the Offences against the Person Ordinance, Cap. 212. The Particulars of Offence alleged that he "unlawfully and maliciously caused grievous bodily harm to (the police constable) with intent to do him grievous bodily harm";

(2) reckless driving contrary to s. 37(1) of the Road Traffic Ordinance, Cap. 374; and

(3) driving whilst disqualified, contrary to s. 44(1) of the same Ordinance.

4. He was arraigned before Judge Evans sitting as a deputy judge of the High Court on 9th August, the first count of the indictment having been amended by replacing the words "with intent to do him grievous bodily harm" with the words "with intent to resist or prevent the lawful apprehension" of the defendant. He pleaded guilty to all counts.

5. The judge sentenced him respectively to six years' imprisonment, 18 months' imprisonment and three years' disqualification and six months' imprisonment and seven years' disqualification. The first two terms of imprisonment were ordered to run concurrently but to be consecutive to a sentence which the defendant was then serving, but must have been soon to expire. The periods of disqualification were made consecutive and to commence at the expiry of an existing order. Thus the overall imprisonment was for six years and the overall disqualification for ten years together with whatever remained of the current disqualification period. The defendant now applies, with the assistance of Mr. Mullick of counsel, for leave to appeal against the sentence imposed on the first count.

6. Mr. Mullick's starting point, and indeed his entire submission, is based on the sentence of four years upheld by this Court in Queen v. Dennis Chiu Tat Shing unreported Crim. App. 238 of 1984, 19th October 1984. We accept that there are initial similarities between the two cases but we have to point out that Dennis Chiu, although convicted after trial rather than on a plea of guilty, was of previous exemplary character and acted only, as this Court then observed, in careless disregard of whether or not life and limb were threatened by his conduct, whereas the present defendant acted in deliberate disregard of life and limb, being those of a police constable who was, on the face of it, performing a merely routine operation. We may add that it was through no act of the defendant, but only by good fortune, that the constable was released from the position in which the defendant had trapped him by winding up the window. These circumstances make the present case, in our opinion, significantly different from that of Dennis Chiu. Even so we are satisfied that the sentence was in fact unduly heavy and that the judge cannot have given sufficient discount for the fact that the defendant did plead guilty from the outset.

7. We therefore grant the application for leave, treat this hearing as the appeal itself, allow the appeal and set aside the sentence of six years on the first count. We replace it with a sentence of five years' imprisonment.

(Sir Derek Cons)	(N.P. Power)	(N. Macdougall)
Acting Chief Justice	Justice of Appeal	Justice of Appeal

Representation:

D.G. Saw, Crown Prosecutor for the respondent

John Mullick, assigned by DLA for applicant (re sentence)

Applicant in person (re conviction)