The Queen v. Cheung Hay Din and Others

CACC000623A/1988

BETWEEN

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

Coram: Silke, V-P, Power and Macdougall, JJA

Dates of Hearing: 11-14 December 1990, 19-20 April, 30 May and 5 November 1991

Date of Judgment (sentence): 5 November 1991

Date of Handing down Reasons: 15 November 1991

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

JUDGMENT

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

Sentence

Silke, V-P:

1. Cheung Hay Din, known throughout these proceedings as Alan, Cheung Hing Sheen, known as Iris, and Cheung Chiu Din, known as Steven, had been convicted of a number of offences before His Honour Judge Cameron in the District Court.

2. Those offences were Alan:

3. Iris was convicted on the single charge of criminal intimidation contained in Charge 1.

4. Steven was convicted on Charge 6, common assault of Steve Wong on 1st February 1988 and on Charge 8 resisting a police officer in the execution of his duty on 2nd February 1988.

5. On 30th May 1991 - there hab been considerable delay in the matter coming on for hearing - this Court refused their applications in respect of conviction. Their consequential applications in respect of sentence were adjourned for reasons on which it is not necessary to expatiate and are now before us.

6. Those sentences were Alan: charge 1: 18 months imprisonment suspended for two years and a fine of $20,000; and similar sentences on charges 4 and 5; charge 7: six months imprisonment suspended for two years and a fine of $10,000. The total fines came to $70,000.

7. Iris was sentenced on charge 1 to one years imprisonment suspended for one year and to a fine of $15,000.

8. Steven was sentenced to six months imprisonment suspended for 18 months and a fine of $10,000 on charge 6 and to a similar sentence on charge 8. His total fines were $20,000.

9. Representation for the applicants has varied throughout these proceedings and today Mr Sanguinetti appears for Alan on charge 7, but no other, and for Steven on charges 6 and 8. Miss Draycott, who appears for Iris, has had the goodness to address us on behalf of Alan in relation to the sentences imposed upon him on charges 1, 4 and 5.

10. At the conclusion of the hearing we stated that we would give leave, allow the appeals in the manner then indicated and would give our reasons later. This we now do.

11. Dealing first with the grounds advanced by Mr Sanguinetti. In respect of charges 7 and 8 he has drawn the attention of the Court to the provisions of s 109B(1) of the Criminal Procedure Ordinance, which relates to the imposition of suspended sentences, and to the provisions of s 109G of the same ordinance. It is accepted by the Crown, and we heard no further argument on the matter, that offences under s 36 of the Offences Against the Persons Ordinance Cap 212 are, for some reason, "excepted" offences. There is no jurisdiction in a trial judge to suspend any sentence of imprisonment he imposes after conviction. It is unfortunate that the hands of the Court should be tied in this way but that is the law as it now stands.

12. It is clear that the trial judge here, in the light of the generality of the sentences he imposed, considered imprisonment to be correct, but, in all the circumstances of this case, that that imprisonment should be suspended and he took that course throughout. In respect of charges 7 and 8 he was in error.

13. We interpolate here that counsel have a duty when they come to attend court to be aware of what the maximum sentences are in relation to any matter which concerns them and what the judge's sentencing options are. If the judge should err in his jurisdiction then counsel, be it for the prosecution are for the defence, should immediately draw that error to the judge's attention. That practice was endorsed in R v Nunes "The Times", Wednesday, 31 July 1991. If the judge's attention is drawn to any mistake, at the time the mistake is made, a great of deal of public expense can be saved. We would add that neither Mr Sanguinetti, Miss Draycott nor, Mr Saw, who now appears for the Crown, were present in Court at the time of sentencing and what we have just said is intended as no criticism of them.

14. Mr Sangunetti then went on to rely on that contained in the homemade grounds of each of the applicants, namely the assertion that the sentences imposed were" too severe". In the judgment of this court relating to conviction we have set out, in extenso, the evidence as it stood before the trial judge and which he accepted. It is unnecessary to set that out in such detail again. Mr Sanguinetti has made an impassioned appeal for this Court to bear in mind the whole of the circumstance of this offence and consequences, both immediate and long term, of the arrest and conviction of these applicants who were otherwise of good character. He has suggested that the resistance to arrest was minimal and was a natural concomitant of the manner in which they were apprehended by the police

15. With this latter submission we do not agree. Alan was informed he was to be arrested. He was directed to turn round and to place his hands against one of the nearby stone pillars in the hotel in which he and the police then were. There was an attempt to search Alan at that point. He then pushed the searcher's arms away and was in turn pushed back to the wall. He again turned around and pushed the searcher away. Two other officers displaying their warrant cards came upon the scene and told Alan that they were police officers. There was a general struggle between the police officers and Alan, and the searcher and Alan fell to the ground at which time Alan began to struggle violently, screaming for help in Cantonese. He continued to resist very strongly. Eventually he was handcuffed.

16. Steven, who was with Iris in a car some distance away from the hotel, was stopped as he moved away from that car. He was asked for his identity card and told to place his hands on top of the car and that he was under arrest. Handcuffs were then produced. When attempts were made to handcuff him he pushed the police officer away. They were at that time in a small space near the car and Steven was pulled out from that space. He struggled. He was subdued with the assistance of two other police constables and handcuffed. He still yelled, screamed and struggled. He was taken to a police unit and then to Tsimshatsui police station where he continued to behave violently for some time. Assistance from both Alan and Iris was called for to try to calm him. His violent behaviour eased but it did not cease.

17. On this evidence, we do not consider that either Alan or Steven were reacting in any natural or surprised manner to the fact of their apprehension. They were clearly and positively resisting their arrest with the full intention of doing so. Mr Sanguinetti then submitted that the two were charged under an ordinance carrying the highest penalty for this type of offence; lesser penalties being provided for in the Summary Offences Ordinance and the Police Force Ordinance. There can be no doubt that the charge laid, and it is a matter for the Attorney General as to the form the charge takes, carried the most serious penalty but we are not prepared to say that he was unjustified in taking the course he did.

18. As to the assault by Steven, Mr Sanguinetti has urged upon us that it was a very minor one; no injuries were caused and it in no way warranted the type of sentence imposed. But this assault was not simply a one-off. It was part of the general climate of intimidation in which the three applicants had indulged. Both this Court, and the trial judge, were and are fully aware that all of these matters arose from business disputes and had been going on for some time. The Steve Wong who was assaulted was associated with the other side of that dispute. He had left his office on 1st February 1988 in the afternoon to go to a bank. While he was on his way he was stopped by Steven who was with another man. Steven asked him if one of the other protagonists was in Hong Kong which Steve replied he did not "' know. He had asked to telephone that man. He could not see now he could do so. Steven then said "Don't cheat me, do you believe I will beat you up'', and the man who was with Steven said to him "Beat him up later". Steven then grabbed Steve Wong by the collar of his jacket. Spectators in the vicinity scattered themselves. Steve Wong was then released but as he turned to leave Steven struck him a blow on the back of his head with his arm. Steven was then dragged away by the other man. A report was made to the police.

19. This report triggered the interest of the police which cumulated in the arrests which took place on 2nd February 1988. We do not consider this to be a trivial matter-although the actual assault itself was minor-reviewed in the context of the whole of the matter as it lay before the trial judge.

20. Generally we are aware that injuries were found upon Steven and Alan albeit minor ones - this subsequent to their arrest - and we bear in mind Mr Sanguinetti's criticism of police conduct. Further, they were, although of good character, remanded in custody for a period. of time before being released on bail and remanded  in custody immediately after conviction pending the reception by the trial judge of probation reports. The total period spent in custody overall was some 25 days.

21. Notwithstanding all of that the circumstances here would have entitled the trial judge to impose immediate custodial sentences. The fact that he did not do so, in the sense that he suspended the imprisonment which he thought to be appropriate, is not something with which we think we should interfere other than where he erred. We will consider the quantum of fines imposed after considering the submissions of Miss Draycott.

22. On behalf of Alan Miss Draycott has indicated to us that he has no complaints regarding the imposition of suspended sentences on charges 1, 4 and 5. He does complain however about the fines. It is correct that no detailed examination of means was carried out by the trial judge at the time of sentencing. But he was in a difficult position insofar as he had before him probation reports which referred to Steven as being employed in the family business - Trendsetter - and counsel's submissions that all the applicants were gainfully employed. He was told that both Iris and Steven assisted their mother in the running of Trendsetter although it was made clear that Trendsetter's finances were in a parlous state. By having said all this we think that before imposing the very substantial fines he did - and in addition to the period of imprisonment suspended - a more detailed examination of means should have taken place. The fines were in the circumstances excessive.

23. Miss Draycott has made a particular plea on behalf of Iris, who was convicted of but one matter although her conduct thereafter was offensive but not criminal, that she be given an opportunity to fully rehabilitate herself. She has referred us to the Rehabilitation of Offenders Ordinance Cap 297 which permits, after three years good behaviour, a person who has been sentenced to less than imprisonment or a fine of $5,000 or less to have their conviction expunged from criminal records. We view Iris as being in a special position. It is clear that her brother, Alan, was the main mover in this matter and we are prepared to exercise elemency.

24. We thought the fines upon Alan in charges 1, 4 and 5 should be reduced to sums of $5,000 on each offence, giving a totality of $15,000; on charge 7 the sentence imposed would be set aside and for it there would be substituted a fine of $7,000; giving a totality of $22,000.

25. As to Iris, we set aside the sentence imposed and substitute for it a fine of $5,000.

26. As to Steven, on count 6, we set aside the fine completely but the suspended sentence will remain. On charge 8, we set aside the sentence imposed and substitute for it a fine of $5,000.

27. In imposing the fine of $7,000 on Alan in respect of charge 7, we bore in mind the totality of the fines imposed upon him.

Representation:

A.J.J. Sanguinetti Esq (M/s Ip & Willis) for D1 on charge 7 and D3 on charges 6 and 8

Miss C. Draycott (M/s Ip & Willis) for D2 D1 in person on charges 1, 4 and 5

D.G. Saw Esq for the Crown/Respondent