HKSAR v. Ying Kwan

DCCC418/2010

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 418 OF 2010

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Reasons for Sentence

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1.The defendant is convicted upon his own plea of the 2nd and the 3rd charges, of loitering causing concern, contrary to section 160(3) of the Crimes Ordinance, and resisting police officer in the due execution of his duty, contrary to section 36(b) of the Offences against the Person Ordinance, respectively.

2.Upon the prosecution’s application, Charge 1 is left on the court’s file and not to be proceeded with unless with the leave of the court.

3.The Particulars of Offence of the 2nd charge read:

Ying Kwan, on the 2nd day of March, 2010, at Ground Floor, No. 11 Un Chau Street, Shamshuipo, Kowloon, in Hong Kong, loitered in the said place, being a public place, and his presence there caused Chan Lai-man reasonably to be concerned for his safety or well-being.

4.The Particulars of Offence of the 3rd charge read:

Ying Kwan, on the 2nd day of March, 2010, at the Rear Lane of No. 11 Un Chau Street, Shamshuipo, Kowloon, in Hong Kong, resisted Police Constable 34395 Yeung Cheuk-yin of the Hong Kong Police Force, in the due execution of his duty.

5.The facts admitted by the defendant in relation to the 2nd and the 3rd charges reveal that at all material times, Chan Lai-man (PW1) was a staff member of the Japanese Restaurant Sanqiaoyiyi (the restaurant).  The restaurant has two shops at Un Chau Street, Shamshuipo, Kowloon, Hong Kong.  The two shops are situated at the Ground Floor of No. 11 (Shop A) and No. 5-7 (Shop B) on Un Chau Street respectively.  There was a metal gate at the back alley of the two shops leading to the light well of Shop A.

6.On 2 March 2010 at around 2215 hours, PW1 left Shop A to Shop B via the back alley when he first saw the defendant there.  PW1 paid no attention to him.  Moments later, PW1 returned to Shop A from Shop B, and he saw the defendant searching a cabinet at the light well of Shop A. PW1 thought that the defendant was an electrician and hence he did not speak to the defendant.  However, when PW1 returned to Shop A, his colleagues confirmed to him that the restaurant had not engaged any electrician at that time.  PW1 then went back to the light well and questioned the defendant, who was still searching the cabinet there, as to what he was searching thereat.  The defendant answered PW1 that it was none of his business.  PW1 thus returned to Shop A and made a call to the police.

7.Subsequently, PW1 walked out to the light well again.  There he found the defendant yelling something incomprehensible at the back alley.  The defendant then climbed up to the canopy of the building opposite to the two shops with a wooden ladder found there.  After yelling for a while, the defendant headed back down and attempted to leave the scene.  He was intercepted by PC34395 (PW2).  Upon questioning, the defendant told PW2 that he was just having a walk thereat.  PW2 searched the defendant afterwards and found from the right pocket of the defendant’s windbreaker one stone wrapped in a piece of paper.  PW2 further found a working glove and a nylon bag in the left pocket of the defendant’s windbreaker.

8.PW2 then informed the defendant that he was under arrest for attempted burglary.  Without warning, the defendant suddenly elbowed the chest of PW2 and tried to escape.  When PW2 stopped him, the defendant struggled and scratched PW2’s arms.  Eventually the defendant was subdued and handcuffed by PW2 and other police officers.

9.The restaurant suffered no loss or damage. Subsequent medical examination showed that PW2 had sustained tenderness on his sternum and redness on his bilateral wrists due to the incident.  PW2 was given sick leave of two days as a result.

10.Disregarding the defendant’s three previous records of failing to answer police for court bail, the defendant has 13 previous convictions, out of which there were three previous convictions of burglary, six previous convictions of theft, and one previous conviction of attempted theft.  The defendant was last sentenced to 2 months’ imprisonment on 22 January this year for the offence of theft.

11.The defendant was born in October 1976.  He is now 33 years old.  Not much was revealed from the defendant’s antecedents statement as the defendant was unwilling to disclose his personal information to the police.

12.In mitigation, the defence counsel informed me that the defendant received education up to Form 2 level.  Thereafter, the defendant had been doing odd jobs such as delivery worker, kitchen worker, and decoration worker.  He is problem-free regarding his health condition.  He is single.  As can be seen from his criminal record, he has been in and out of prison.  When he is out of prison, he does odd jobs and stays with his parents and elder brother.  The defendant was last released on 1 March 2010, the day before he committed the present two offences.  The defence counsel submitted that at the material time the defendant had consumed alcohol and then took some painkiller so he was muddled.  Defence counsel also submitted that the assault on the police officer was not intentional.  Defence counsel submitted that as the defendant’s intoxication was voluntary, his intoxication did not negative the mens rea concerning the 2nd and the 3rd charges.

13.In imposing sentence regarding the present two charges, I have considered three cases, namely Yeung Yun Kwan v R, CACC223/1981; HKSAR v Ko Long Tsai, HCMA132/2007; and another Chinese judgment, HKSAR v Cheng Ka Tung and Others, DCCC838/2009.

14.Regarding the 2nd charge, I am going to adopt a starting point of 6 months’ imprisonment. 

15.Regarding the 3rd charge, I quote the judgment of Secretary for Justice v Ko Wai Kit, CAAR 12/2001, where the Court of Appeal stated that the sentence to be imposed must carry a deterrent element in regard to the charge of resisting police officer for it is vital that those engaged to execute police duties are enabled properly to do so.  In light of the injuries sustained by PW2, I am going to adopt a starting point of 3 months’ imprisonment.

16.As the defendant pleaded guilty to both charges, I will give him one-third discount, thus reducing the sentences for the 2nd and the 3rd charges to 4 months’ and 2 months’ imprisonment respectively.

17.Regarding totality, the two offences were of different nature.  I consider it appropriate to order the two sentences to run consecutively, thus making a total of 6 months’ imprisonment.