Tsoi Nai Ying v. The Queen

Case No.CACC 733/1971

Court

Court of Appeal

Date01 Jan 1900

Judge—

Case Document

100%

CACC000733/1971

IN THE SUPREME COURT OF HONG KONG

(APPELLATE JURISDICTION)

CRIMINAL APPEAL NO. 733 OF 1971

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BETWEEN
	TSOI NAI YING	Appellant
	and
	THE QUEEN	Respondent

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Coram: Pickering, J.

Date of Judgment:

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JUDGMENT

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1. This appeal is against a sentence of three months imprisonment for escaping from legal custody and a consecutive sentence of the same length for assaulting a police officer in the execution of his duty.

2. The facts are set out by the learned magistrate in the Statement of Findings as follows:-

"	On the 1st September this year the appellant appeared before a magistrate in No.2 Court of Causeway Bay Magistracy and was convicted of offences of possession of dangerous drugs, resisting arrest and assaulting a police officer in the due execution of duty and he was remanded to prison until the 8th September pending a Probation Officer's report. He was also due to appear before another Court on charges of robbery.
	When he was being escorted by a police constable from the courtroom to the cells of the Magistracy to await transfer to prison and when he had reached the landing at the top of the staircase leading to the cells he suddenly pushed the constable, (who fell to the floor), and ran towards the main entrance of the building, but he was intercepted by a Court messenger Mr. Chan Kwok Hung, who smartly tripped him with his foot and he fell and was recaptured by the constable and other officers. The constable sustained bruises to both knees. Although the injuries were superficial he was obliged to go off duty for 2 days."

3. Upon his appeal, the appellant's primary request was that I should order the sentences to run concurrently. The reason for ordering consecutive sentences was stated cogently by the learned magistrate thus: -

" I directed myself that although the escape from legal custody and the assault on the constable occurred simultaneously they were distinct offences and any sentences should be consecutive rather than concurrent for if there were to be no distinction in punishment between one who merely escaped from custody and one who also assaulted a police officer in the process of escape it would not only be an incongruity but intrinsically a denial of protection to the police in the due execution of their duty."

4. I entirely agree that it is for the Courts to offer protection to the police and prison authorities in the due execution of their duty.

5. The appellant in the present case had previous convictions for theft, robbery with aggravation, possession of dangerous drugs and, in particular, a previous conviction for escaping from prison and another for assaulting a police officer in the execution of his duty. Had the escape been from a prison institution, a heavier sentence than three months would have been justified whereas escape from the custody of police upon arrest, would normally attract a lighter sentence. The circumstances of the appellant's escape lie midway along this continuum, he having been convicted of serious offences and being on remand awaiting sentence, as well as a further trial upon charges of robbery. Having regard to the appellant's record and, in particular, his previous escape from custody the sentences, although not light, were in no way excessive and the decision to order them to run consecutively was, in my view, a correct one.

6. The appeal is dismissed.

Representation: