The Queen v. Wong Ping Kwan

CACC001028/1983

BETWEEN

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Coram: McMullin, V.-P., Li & Silke, JJ.A.

Date: 25 January 1984

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JUDGMENT

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Silke, J. A.:

1. On 24th February 1983, at about 3:00 in the morning, the police raided a residential flat at No. 22, Fuk Wah Street, Shamshuipo. This flat consists of a number of cubicles, the door of one of which was knocked down as the police broke into it. Under a mattress on the lower bed of a double bunk they found two pistols and eleven bullets.

2. They laid an ambush. At about 4:20 of that morning the applicant was seen at the lift entrance. The police party said that the applicant attempted to run away but was subdued. He had the keys to the cubicle upon him.

3. The pistols were one Browning point 25 automatic and one Japanese converted imitation. There were 5 rounds of home-made ammunition and 6 rounds of point 25 ammunition.

4. The applicant appeared for trial on three charges: the first being possession of the guns, the second being possession of the ammunition and the third being assaulting a police officer with intent to prevent lawful detention. He was jointly charged on the first and second charges with one KWONG Ying.

5. The applicant having pleaded guilty to the charges of possession of arms and possession of ammunition and the Crown having offered no evidence on the assaulting the police officer charge, the trial judge passed a sentence of four years' imprisonment concurrent. He took into consideration the plea and the fact that the applicant had a clear record.

6. The applicant was an illegal immigrant who came here in September of 1982. He said that he had the guns for "self defence". But, as this Court had said on a number of occasions, the possession of guns in Hong Kong is a very serious offence. Not only may such guns be and are used in the commission of other offences but they could well be stolen from the person who has them for purposes of that nature. It was not suggested that there was evidence here that the applicant intended to actually use the guns. Had there been I would have thought that the matter would have been brought in a different court where the sentence could have been very much greater.

7. On the bare facts of the case there is nothing whatsoever wrong in the sentence imposed. A total of five to six years after trial would be in no way inappropriate, four years after a plea is correct.

8. The issue which did give us some concern was the injuries which were upon the person of the applicant. On the first occasion when this came before us, we were aware that he had been in hospital for what appeared to be a considerable time. We asked for medical reports which we received but which we did not think to be sufficient in its details for us to consider the circumstances of this matter. We further adjourned for a further medical report from the Cardiothoracic Unit of Queen Elizabeth Hospital.

9. It was clear that when the applicant was first examined he had a bruise over his chest, some other bruises on his foot and his toe and bruises over both loins. We saw from the second report which we have received that that which caused the bruise on the chest also caused a contusion of the lung. This was an extremely mild contusion but it did result in some bleeding which was shown in blood-streaked sputum.

10. The reason why he was kept in hospital was to allow this to clear up completely which it did after a period of about four months.

11. The complaint by the applicant is that he was very severely beaten by the police. The complaint was made to CAPO and the complaint was thoroughly investigated. We are told that, in the course of the investigation, the applicant was uncooperative and that he refused to attend an identification parade to indicate those who had, as he alleged, assaulted him. There was, according to the police evidence, a struggle at the time of his arrest from which the injuries which were seen upon him could well have resulted. He had said to us here today that the fact that he had been beaten is punishment enough. We are not, however, persuaded that this was a beating in isolation, that is, a beating purely for the purposes of giving him punishment by the police. We do not think that the fact that he did suffer these injuries and was in hospital for a considerable period of time should diminish the quantum of the sentence.

12. The application for leave to appeal against sentence is refused.

Representation:

Applicant in person.

J.P. McNamara, Esq. for Crown/Respondent.