Attorney General v. Chan Pui-yin Alias Chan Kwun-hung

CAAR000014/1973

IN THE SUPREME COURT OF HONG KONG

(APPELLATE JURISDICTION)

APPLICATION FOR REVIEW 14 OF 1973

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Coram: Pickering and Cons, JJ.

Date of Judgment: 9th August, 1973.

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JUDGMENT

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Pickering, J.:

1. The respondent pleaded guilty to three charges of assaulting a police officer in the execution of his duty. The facts were that when, on the 20th June 1973 in the corridor of the 12th Block of the Hing Wah Estate, Chai Wan, police attempted to arrest him in connection with a suspected wounding charge, he assaulted the three policemen concerned, causing a very minor, were nonetheless substantially greater than those of any of the three police officers. It is fair to say that upon an identification parade held upon the following day, he was not identified as having anything to do with the wounding charge. The respondent's given reason for resisting arrest was that on a previous occasion he had been invited to a police station where he had suffered unhappy experiences and he desired no repetition.

2. The learned magistrate discharged the respondent absolutely, under section 36(1)(a) of the Magistrates Ordinance Cap.227, without recording a conviction. It is against that absolute discharge that the Attorney General now applies for review, his application so to apply having been granted by the learned Chief Justice on the 24th July.

3. As it seems to us, not many avenues were open to the learned magistrate in deciding what sentence to impose upon the respondent who was, at the date of his trial, within four months of the expiration of a two-year term of probation and who had an extremely favourable report from his probation officer. In our view, and in that of the learned magistrate, it was palpably not a case for a prison sentence ; moreover the training centre authorities had found the respondent to be unsuitable for detention in a training centre ; and, although the report of the after-care officer suggested that he might be a suitable subject for detention in a detention centre, we disagree profoundly with that view as, presumably, did the learned magistrate. The respondent is not a young thug engaged in offences involving weapons or in any triad activities, and the "short sharp shock" treatment envisaged by detention in a detention centre, would be unnecessarily severe.

4. It would have been open to the learned magistrate to have extended the period of the respondent's probation or to use his powers under section 36(1)(b) so as to discharge the respondent conditionally upon his entering into a recognizance, instead of discharging him unconditionally under section 36(1)(a).

5. The course in fact taken by the learned magistrate was not so very different from the two alternative courses open to him which we have outlined, as to render the course he took either wrong in principle or manifestly inadequate, when related to either of those two alternative courses. The remaining avenue of sentence was, of course, to impose a fine and whether or not the learned magistrate considered this possibility we do not know.

6. It is however undoubtedly the case, as Mr. Sceats, for the Crown, emphasised, that police officers are entitled to look to the Courts for protection in the performance of their duties, and that the respondent had no right to take the law into his own hands. Whilst we are of the opinion that any severe sentence, in respect of what was a not unduly serious offence, might well have the effect of negativing the progress which the respondent had made under probation, the protection of the police in the execution of their duties, must be underlined by the Courts and some penalty should, in our view, have been imposed. The maximum penalty under the section under which the respondent was charged is a fine of $250 and six months imprisonment. We have already expressed the view that this was not a case for imprisonment but the unconditional discharges will be set aside, convictions recorded, and the respondent fined $80 upon each of the three charges with the alternative of ten days imprisonment in respect of any one of the fines which goes unpaid. He is to have one month within which to pay.

Representation:

Sceats, C.C., for applicant.

Miss Chua, counsel assigned for respondent.