Li Wai-man v. The Queen
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CACC000943/1976
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----------------- Coram: Pickering, J.A. Date of Judgment: 22nd September, 1976. ----------------- JUDGMENT ----------------- 1. At a time when he was unrepresented the appellant gave notice of intention to appeal against convictions for indecent exposure in a public place and resisting arrest. Subsequently he employed solicitors and Mr. Claypole, who represented the appellant, informed me that having perused the record he could not conscientiously pursue the appeal against conviction, that he had so advised the appellant and that the latter now wished to withdraw that appeal. This advice and its acceptance were clearly right since, in relation to the first charge there could have been no possibility of mistaken identity, the appellant and the girl to whom he has exposed himself knowing each other well by sight; similarly in regard to the second charge there was ample evidence of some measure of resistance to arrest. 2. Mr. Claypole however sought leave to appeal against sentence out of time and, the Crown having no objection, I granted such leave. The appellant had been sentenced to three months' imprisonment on each of the two charges, the sentences to run consecutively. 3. The facts of the first charge were that a 19 year old girl, who was holding her small brother by the hand, was about to enter the lift on the 10th floor of Shek Lei Estate when the lift door opened and the appellant came out blocking her way and asking her to go out with him, a request which she refused. He placed his hand on her shoulder at which she turned away and then he asked her to turn round and look upon which she turned and saw his private parts outside his trousers. The girl pushed the appellant's hand from her shoulder and ran down the stairs with her brother. Mr. Claypole submitted that bad as the incident was it was not the worst of its type whereas it had attracted the maximum penalty of three months' imprisonment. There is some substance in that argument in that the exposure was to one person only (ignoring the small boy) it was not accompanied by any obscenities or threatening behaviour and when the girl turned to run away, no attempt was made to restrain her. Having regard to those matters I allowed the appeal against sentence on the first charge setting aside the charge of three months' imprisonment and substituting it by one of two months. 4. The resistance to arrest consisted, according to the police evidence, of a struggle by the appellant to avoid being handcuffed. The struggle appears to have consisted of the appellant twisting his body about to avoid the handcuffs and it was estimated by one police officer to have lasted between ten seconds and a minute and by the other officer for about three minutes. Nobody was hurt in the struggle and no damage was done. As to the resistance to arrest, the report of the psychiatrist is perhaps in point describing the appellant as being "an unstable and immature individual prone to have hysterical episodes wherever he is under stress. When under stress, he easily dissociated and exhibited pseudopsychotic symptoms." The appellant's arrest took place quite unexpected by him, some days after the commission of the first offence and he was no doubt under some stress at the time. In those circumstances I allowed the appeal against the sentence of three months' imprisonment for resisting arrest, set aside that sentence and substituted for it a sentence of one month's imprisonment. Like the original sentences the substituted sentences are to run consecutively. Representation: Claypole of Haldane & Co. for appellant Stanbury, counsel for the Crown/respondent. |