HKSAR v. Leung Ping Wa

HCMA1038/2005

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appeal against Sentence)

MAGISTRACY APPEAL NO. 1038 OF 2005

(ON APPEAL FROM KCCC 6085 OF 2005)

---------------------

BETWEEN

----------------------

Before : Hon McMahon J in Court

Date of Hearing : 5 January 2006

Date of Judgment : 5 January 2006

----------------------------

J U D G M E N T

----------------------------

1.This is an appeal against sentence only.

2.The appellant was convicted on his own plea of offences of loitering causing a person to be reasonably concerned for his safety, contrary to section 160(3) of the Crimes Ordinance, Cap.200, and resisting arrest, contrary to section 63 of the Police Force Ordinance, Cap.232.  The magistrate adopted a starting point of six months’ imprisonment for each offence.  Allowing for the appellant’s plea of guilty, he was then sentenced to four months’ imprisonment for each offence.  The sentences are to run wholly concurrently, resulting in a total sentence of four months’ imprisonment.

3.The appellant, represented by Mr Ching Wan Fung who did not appear at trial, says that sentence is manifestly excessive in its totality and that the starting points of the individual sentences were too high.

4.Mr Ching also says that the magistrate was wrong in principal in taking into account material facts which were not incorporated into the brief facts upon which the appellant’s pleas were based.

5.Those facts were that the appellant was the ex-boyfriend of PW1, the victim of the loitering offence.  They had terminated their relationship.  The appellant had, about six months prior to the present offences, been prosecuted for raping PW1 but had been acquitted.

6.Those matters concerning the rape prosecution did not appear in the brief facts, which simply set out the following matters :

7.On the morning of the offences, at about 8 a.m., the appellant went to PW1’s flat, rang the doorbell and asked her to go outside to talk to him.  She refused as she was scared and she rang the police.  Subsequently the police arrived and found the appellant still in the corridor outside the flat of PW1.  He told them he was looking for his friend.  The police then spoke to PW1.  They then decided to arrest the appellant.  When they tried to handcuff him, he struggled violently before being subdued and was then also arrested for resisting arrest.  No injuries were sustained by the police in the struggle.

8.In mitigation, however, the appellant’s counsel further said this to the magistrate :

“In about April or May 2004, in fact at that time, defendant and PW1, the relationship between them was one of boyfriend and girlfriend.  And in April or May last year, the victim, PW1, made a report to the police, alleging that she was raped by the defendant.  And as a consequence of that, defendant was later on arrested and charged and brought before the court.  There was a High Court trial in relation to this alleged rape.  The matter — the trial ended in about December last year.  At the end of the day, the defendant was acquitted in the trial.  But somehow, by reason of that particular complaint by the victim, defendant was in custody for about eight months, seven to eight months.  That, in fact, has cost the defendant a lot.  And for that reason, defendant on the day as stated in the brief facts in the matter, came to the victim’s residence.  He was minded to reason with the victim in question.  But of course the victim refused to talk to him and that resulted in the present offences being committed by the defendant.”

9.As I say, the particular complaint made by the appellant before me is that the magistrate wrongly took into account the fact that the appellant had previously been a subject of a rape complaint by PW1.  Mr Ching says that the previous rape complaint and trial was not a matter which should have been taken into account so far as the sentence for the present offence of loitering is concerned as the appellant was entitled to be sentenced only on the brief facts presented to the court.

10.I disagree.  The offence of loitering charged under the provisions of section 160(3) of the Crimes Ordinance has as one of its elements the causing of concern to the victim.  In the present case, the previous history between the appellant and PW1 was relevant to the level of concern occasioned to PW1 by the appellant loitering outside her front door.  The degree of concern knowingly caused to PW1 by the appellant goes to his culpability.  It was a matter properly available for the magistrate’s consideration.

11.The matter of the rape complaint had been brought to the attention of the magistrate by counsel representing the appellant.  The appellant can hardly complain if some matter he seeks to rely upon, presumably for the purposes of showing there was a previous falling out between the appellant and PW1 and that the appellant had already spent time in custody as a result of PW1’s rape complaint, rebounds against him and becomes one of the matters the magistrate may properly have considered worsened the offence.

12.As the magistrate said :

“Could I just say this, that the brief facts should have reflected the real situation in this case? … They in no way reflect the reality of the situation.”

13.The magistrate was entitled to take into account whatever material was properly before him and which revealed “the real situation” in arriving at sentence.  The previous relationship between the appellant and PW1 meant that the loitering offence was more serious than it otherwise would have been, and the six months’ starting point cannot be criticised.

14.So far as the second charge of resisting arrest is concerned, no police officers were injured and in those circumstances, I agree, as I understand also does Mr Hau for the respondent, that the starting point of six months was too high.  Offences of this sort would normally attract a sentence of two to three months’ imprisonment.

15.In the present case, the appellant has a prior history of violent offences, one of which was also an offence of resisting arrest.  In my view, a starting point of three months’ imprisonment is appropriate. 

16.Offences of resisting arrest would normally attract sentences consecutive to any sentence imposed in respect to the offence for which the offender was arrested.  That is for obvious reasons.  Concurrent sentences would offer no protection to the arresting police officers, as there would be no deterrence to persons being arrested assaulting those officers.

17.Accordingly, I make the following orders.  The appeal against sentence in respect of the offence of loitering is dismissed.  The appeal against sentence in respect of the offence of resisting arrest is allowed.  The sentence of four months’ imprisonment is replaced by a sentence of two months’ imprisonment, allowing for the appellant’s plea of guilty.  One month of that sentence is to be served consecutively to the sentence imposed in respect of the offence of loitering.  That is a totality of five months’ imprisonment.

Mr Stewart Hau, SGC of the Department of Justice, for HKSAR

Mr Ching Wan Fung, assigned by DLA, for the Appellant