The Queen v. Chan Chi Man

CACC000048/1989

Coram: Hon. Cons, Ag. C.J., Power & Macdougall, J.J.A.

Date of hearing: 1 August 1989

Date of delivery of judgment: 1 August 1989

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J U D G M E N T

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

1. CHAN Chi-man (the "Defendant") was convicted by Judge Wally Yeung, after a trial lasting two days in the District Court, of four charges, namely, taking a conveyance without authority, driving without third party insurance, possession of offensive weapons in a public place and resisting police officers in the execution of their duty. For the driving offence he was fined $500 and disqualified for two years; on the others he was sentenced to a total of two years and three months.

2. The evidence against him was that at 0240 hours in the early morning of 10th September last year he was seen by police officers standing at the rear of a parked taxi. The police officers were on patrol in a private car. The Defendant was wearing gloves and was holding a long iron pipe, flattened at one end. The taxi was subsequently found to have been stolen by him earlier that morning.

3. When the Defendant saw the police he drove off quickly, throwing the iron bar onto the back seat of the taxi. The police caught up with him when he was stopped by traffic lights and one constable showed his warrant card and asked the Defendant to stop. Instead however he drove of again.

4. The police caught up with him when, being blocked by traffic, he tried to get past by driving onto the pavement. Unfortunately for him his path was obstructed by a fire hydrant. Abandoning the taxi he ran off, only to be caught by the same constable, who had approached him at the traffic lights and who again repeated his identity. The Defendant made one more attempt to escape, by punching the constable, and he did in fact manage to break away, but was caught and eventually overpowered by the other constables.

5. On their return to the taxi, which had been guarded meanwhile by still further policemen, an iron bar was found on the back seat, and underneath the driving seat, two 14" knives.

6. The Defendant gave evidence to the judge that was quite inconsistent with the story told by the constables. His evidence was rejected, and we have this morning given him leave to abandon an application with regard to his conviction.

7. He is now aged 36. He is married with two daughters and a son. He has apparently been working to some extent as a fishmonger in Kwun Tong. He committed his first offence, one of housebreaking, when he was not quite 13 years of age. Put on probation for 18 months he failed to stay the course, but the period was extended. He then remained out of trouble for some 13 years, apart from two minor offences. After two offences of stealing cars, and aiding and abetting illegal immigrants, there was another pause, until five years ago when he was convicted of an offence of burglary. It must have been a curious example of that crime, for the sentence of 18 months imposed upon him was suspended.

8. Mr. Westbrook applies on his behalf today for leave to appeal against the sentences, suggesting they are too great in totality. He has addressed us with his usual ability and charm and has put forward everything that could conceivably be said on behalf of the Defendant. But we have to say that in our view, a view which we think confirmed by a simple recital of the facts of the case, the totality of the sentence was not inappropriate, and could not possibly be called manifestly excessive. We therefore refuse the application for leave to appeal against the sentence.

Representation:

I.G. Cross, Crown Prosecutor for the Respondent

Simm Westbrook, M/s. Haldane, Midgley & Booth for the Applicant