Lau Chung and Others v. The Queen

CACC000986/1971

IN THE SUPREME COURT OF HONG KONG

(APPELLATE JURISDICTION)

CRIMINAL APPEAL NO. 986 OF 1971

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

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

Coram: Briggs and Huggins, JJ.

Date of Judgment: 27.3.72.

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

JUDGMENT

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

Briggs, J.:

1. The four appellants were convicted for certain offences arising out of a concerted attack upon a woman in Jordan Road, Kowloon in the early morning of 28th September 1971.

2. The first appellant pleaded guilty to unlawful wounding and was sentenced to 12 months' imprisonment. The second appellant pleaded guilty to common assault and was sentenced to 10 months' imprisonment. The third appellant was found guilty of assault occasioning actual bodily harm and was sentenced to 15 months' imprisonment. In addition he was found guilty of resisting a police officer in the execution of his duty and was sentenced to a further three months. The fourth appellant pleaded guilty to common assault and to resisting the police and was sentenced to 10 months and 2 months respectively, the sentences to be consecutive.

3. The third appellant appeals against his convictions but not against the sentences imposed in his case. The other three appellants all appeal against their sentences.

4. The facts are simple. The four appellants with two others went to a massage parlour at about 2 a.m. on 28th September 1971. The first appellant was served by the victim, a Mrs. Lee, and he began to molest her. There was a fracas and the appellants and their two companions left the premises. Shortly after the first appellant and the two companions but not the other three appellants returned to the parlour ostensibly to look for a lost notebook. Though she was not molested on this occasion, the victim was alarmed and fetched a kitchen utensil to arm herself. A few minutes later she left for home taking this utensil, which has a sharp cutting edge, with her.

5. She met the six men outside and she was set upon. The kitchen utensil was snatched from her and, apparently, she was wounded by it in the leg by the first appellant. Two of the other men were armed with poles. The victim complained that she was kicked and punched and she fell to the ground. There was a police patrol near the scene which came to Mrs. Lee's rescue. The four appellants were arrested, the third and fourth resisted the police.

6. There was ample evidence of the common intent of all the appellants to assault the victim.

7. Curiously enough very little evidence was given at the trial of the wound suffered by Mrs. Lee. However counsel for the third appellant conceded that Mrs. Lee had been wounded. So we dismissed the appeal of the third appellant against his convictions. We dismissed the appeal of the first appellant against sentence. However we reduced the sentences of the second and fourth appellants on the charge of common assault from 10 months to 6 months in each case.

8. The maximum penalty for common assault is 12 months. No doubt the second and fourth appellants took part in a cowardy assault on a woman. But they did not actually inflict the wound of which she complains. In addition, both these two appellants are first offenders, pleaded guilty, and cooperated with the police. We think that the sentence of 10 months was in the circumstances too severe.

9. The time spent in custody awaiting the hearing of this appeal is to count towards the sentence of the first, second and fourth appellants.

10. The sentence of the fourth appellant and the charge of resisting a police officer is to stand and will be served consecutively. We have already said that the third appellant's conviction for this offence is dismissed.

11. In the case of the third appellant the District Judge found as a fact that he, the third appellant, was aware that the person whom he resisted at the time of the offence was a police officer. But when accepting the plea of the fourth appellant to this charge the District Judge pointed out that it was not necessary for the Crown to prove that a defendant knows that the man whom he resisted was a police officer. The case he relied upon for this proposition of law is Kenlin v. Gardiner⁽¹⁾. The District Judge however also pointed out that the Canadian courts have expressed a different view. See R. v. McLeod⁽²⁾. This matter was not argued before us and we wish to make it clear that in dismissing the appeal against sentence of the fourth appellant for this charge we are not to be taken as having approved either the rule in Kenlin v. Gardiner⁽¹⁾ or the opposite view taken by the Canadian courts.

Representation:

S. Leung (Ed. Cheung & Co.) for 1st, 2nd & 4th Applns.

Miss Trieu assigned for 3rd appln on 1st charge only.

Mrs Jackson-lipkin for Crown/Respondent.

(1) 1967 2 W.L.R. 129

(2) 1954 111 Canadian Criminal Cases 106.