The Queen v. Wong Wing Ching

CACC000521/1988

BETWEEN

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Coram: Silke, V.-P. & Macdougall, J,A.

Date of Hearing: 19 January 1989

Date of Judgment: 19 January 1989

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J U D G M E N T

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Silke,V.-P.

1. The Applicant, Wong Wing Ching, appeared before His Honour Judge Souyave in the District Court on four charges. The first, amended from section 17 wounding with intent, was unlawful wounding under section 19 of the Offences Against the Person Ordinance the second: attempting to take a conveyance without authority contrary to section 14 of the Theft Ordinance and the third: tampering with a vehicle contrary to section 49 of the Road Traffic Ordinance.

2. The fourth charge, theft of a police revolver, was not proceeded with, no evidence being offered against the Applicant.

3. The sentencing judge imposed periods of four months imprisonment on each of the three charges and ordered them to run consecutively.

4. The ground of appeal which has been argued before us by Mr. Tse, who appears for the Applicant in this Court, is that that order was wrong as the second and third charges arose out of the same incident and were sufficiently related one to the other that the sentences should have been made concurrent.

5. All these offences tool place on 2nd December 1987 at the Ko Chiu Road Estate in Kowloon. At about 4:00 a.m. a police officer in plain clothes and off duty saw two men near a goods vehicle. One of them was tampering with the dash board of the vehicle and the other, who was the Applicant, was squatting near the front of it. The officer went closer. A third man appeared on the scene and all three started to run away. The officer chased the three men and apprehended one of them. There was a struggle. Then the Applicant and one of the other men returned, and joined in the struggle. The officer was punched and kicked suffering laceration to his head, face, chest, thighs and bands. The result of that attack was to cause him to bleed heavily.

6. In the course of the struggle he tried to pull out his service revolver and this was forcibly taken from him.

7. Further police then arrived on the scene and on examination of the vehicle it was found that the window on the off side was smashed, the lock was prised open and the electrical wiring under the dash board was pulled out. The front. bumper was also on the ground with, as we understand it, the number plate. Four spanners and a glove were found on the scene.

8. That which can be said in mitigation of sentence was that the Applicant pleaded guilty and, more importantly, that on the morning of the incident he had returned to the scene and given information to the police officer as to the whereabouts of his revolver as a result of which it was immediately recovered We need hardly add that he was then arrested.

9. He has a criminal, record going back to 1981, wounding and possession of an offensive weapon. Then, in 1982, two charges of theft. On both first and second sets of convictions he was sentenced to be detained in a Detention Centre. In 1986, first an attempted theft and resisting arrest for, which he was bound over, then while on the previous bond, he was convicted of going equirpped for stealirng and resisting_. arrest and breach of that bond. He was sentenced to a Drug Addiction Treatment Centre. Finally, again in 1986, he was convicted of possession, of an offensive weapon and unlawful sexual intercourse with a girl under 16 and what must have been a concurrent Drug Addiction Treatment Centre order was made. A fine was imposed on the unlawful sexual intercourse charge.

10. The trial judge called for and considered Reports from a Probation officer and from the Commissioner of Correctional Services. He made it clear that he was allowing a discount for the plea and the particular mitigating circumstances to which we have referred.

11. The trial judge imposed the sentences he did without making specific reference to the totality principle, or to the general principle which has been drawn to out attention by Mr. Tse, that, when similar charges arise out of the same incident then except in well defined circumstances, sentence-s should be-concurrent.

12. We accept that Mr. Tse's point in relation to concurrent sentences is here a valid one but we are concerned with the totality of the sentences of twelve month. The maximum period of imprisonment in relation to the first charge is one of three years. The fact the Applicant has a bad record does not increase his sentence, but it certainly does reflect upon the amount of discount to be allowed for a plea and for other mitigating circumstances.

13. The first offence was a serious one, an assault upon a police officer doing that which is a police officer's paramount duty, attempting to prevent crime. We feel that a somewhat lesser discount should have been given than was in fact given to the Applicant. While the method of arranging the sentences was in error the totality arrived at was in no way excessive or improper.

14. We will give leave but treat the hearing as the hearing of the appeal and dismiss the appeal.

Representation:

Paul Tse, Esq. (D.L.A.) for Applicant

I.G. Cross, Esq. & Miss P. Lee for Crown/Respondent