THE QUEEN v. WU TAO SHENG

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HEADNOTE

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CONVICTION OF ALTERNATIVE OFFENCE - S. 51(2) CRIMINAL PROCEDURE ORDINANCE - CHARGE MUST INCLUDE PARTICULARS OF ALTERNATIVE OFFENCE EXPRESSLY OR BY IMPLICATION.

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO. 1752 OF 1990

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JUDGMENT

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1. The appellant was charged before Mr Duggan at Kwun Tong Magistrates Court with the following offences:

                    (A)        Fighting in a public place.

                    (B)        Disorderly conduct.

    (C)         Assault with intent to rob.

    (D)         Resisting arrest.

2. He was acquitted on charge A.   On charge C he was convicted of assaulting a police officer in the execution of his duty.   On charges B and D he was convicted as charged.

3. The appellant was sentenced to one month imprisonment on charges B and D and to three months on charge C, all the sentences being ordered to run concurrently.

4. He originally appealed against his conviction on all three charges but has abandoned that on charges B and D, which stand dismissed accordingly.   He also appeals against all three sentences.

5. The case arose out of a fracas occasioned by an attempt on the part of the appellant and his co-defendants to prevent the arrest of an illegal immigrant.    There was evidence that the appellant put his arm around one officer's neck and touched the pistol in his holster.   He was thrown to the ground by the officer but resisted the attempt to handcuff him.   He was eventually subdued by the other officers in the squad in the face of an abusive crowd of 150-200 people.

6. The appellant did not give evidence.   The magistrate accepted the evidence of the police officer but was not satisfied that the appellant intended to steal the pistol.

7. The point taken by Mr wu for the appellant in his appeal against conviction on charge C is a short one.

8. The magistrate convicted the appellant pursuant to section 51(2) of the Criminal Procedure Ordinance which provides:

The particulars of the charge, however, do not allege expressly or by implication that the officer was acting in the execution of his duty.

9. Mr Ma, for the Crown, relied on a passage in the judgment of McMullin, J. (as he then was) in R. v. Kwok Hung (1978) HKLR 173 at 181 where he said

"Thirdly, where in the absence of explicit precedent or specific statutory alternative he is nevertheless satisfied that the particulars laid in the information or charge necessarily include another offence which has - with all the evidence in - in fact been proved by the prosecution in the course of endeavouring to prove the charge laid, when that charge has failed for want of proof of some necessary element."

10. The words "with all the evidence in" refer to the need to ensure that the alternative offence is proved, not that the failure to particularize the essential elements of the latter in the charge can be cured by the evidence.

11. It was therefore not open to the magistrate to convict the appellant of this offence. For this reason I allowed the appeal and quashed the conviction on charge C.

12. As to sentence, Mr Wu submitted that the appellant, who had a clear record, had a justifiable sense of grievance that his sentences on charges B and D were disproportionate to the binding over of 1st defendant who pleaded guilty to charge B.

13. The magistrate referred to the appellant as the ringleader of the group of seven defendants. That term may not be entirely appropriate in the circumstances of this case, but he certainly played a prominent role.   Moreover, the 1st defendant was convicted only of the less serious offence of disorderly conduct and he pleaded guilty.

14. In my judgment the appellant had no valid ground of complaint about a sentence of 1 month for these two offences after trial and I dismissed his appeal against sentence.