R. v. TSUI SIU PING

No.585 of 1995
(Criminal)

IN THE COURT OF APPEAL

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J U D G M E N T

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Ryan, J.: (giving the judgment of the Court)

1. On 22nd March 1995 at about 11:45 p.m., Sergeant 19583 was on patrol in uniform when he saw the applicant on a footbridge. Being suspicious of the applicant's presence, he went forward to make enquiries calling out to the applicant to stay put. The applicant did not do so and the Sergeant pursued him. When he caught up to the applicant, he put his hand on the applicant's shoulder. The applicant then drew a knife and drove it at the Sergeant's chest. Fortunately, the knife hit on the leather brace of the beat radio and was deflected. The applicant then made another lunge at the Sergeant with the knife, but this too was deflected. There was a scuffle and the applicant ran off pursued by the Sergeant who by then had drawn his revolver. The applicant then turned and came back towards the Sergeant who, believing himself to be in personal danger, fired his revolver, hitting the applicant in the legs, the applicant was apprehended and arrested and a knife was recovered from the scene.

2. He faced three charges. As it was revealed that he was an illegal immigrant, he was charged with unlawfully remaining in Hong Kong, a charge to which he pleaded guilty and was sentenced to 15 months' imprisonment. He pleaded not guilty to one charge of being in possession of an offensive weapon namely, the knife; and to one charge of attempting to wound with intent to cause grievous bodily harm. He was convicted after trial on these two charges, and was sentenced to 12 months' imprisonment in respect of the weapons charge, and to 3¼ years' imprisonment on the attempted wounding charge. The judge ordered that the term of 12 months' imprisonment on the second charge run concurrent with the sentence on the first charge, and that the sentence on the attempted wounding charge be served consecutive to those terms of imprisonment imposed on the first two charges, a total in all of 4½ years' imprisonment.

3. The applicant now seeks leave to appeal against conviction on the second and third charges and seeks leave to appeal against sentence.

4. At the trial, in addition to the evidence of the Sergeant, the prosecution produced two statements taken under caution from the defendant after his arrest which contained a confession. The admissibility of the statements was challenged at the trial, but after hearing evidence on the point, the judge admitted the statements into evidence.

5. The applicant gave evidence at the trial in which he claimed that the Sergeant had said something to him which he didn't understand and therefore ignored. Immediately thereafter the Sergeant kicked him for no apparent reason, causing him to fall down some steps. It was his evidence that he believed the Sergeant intended to rob him and he pushed the Sergeant away; that the Sergeant then drew his pistol and shot him. He conceded that he had been carrying a knife but claimed at all times that knife had been kept in his pocket. He attempted to explain away why he believed that a police officer in uniform was going to rob him, an explanation that the judge not surprisingly rejected as unbelievable.

6. The judge addressed his mind to all of the relevant matters in the case, and on the basis of the prosecution evidence, convicted the applicant as charged.

7. The applicant in his home made grounds of appeal states that it was all a mistake that had come about by a language barrier and that he thought the Sergeant was a robber. We have had today read to us a lengthly letter which basically repeats the matters contained in his grounds of appeal. There is nothing in his appeal against conviction that in any way causes us concern, the verdicts were safe and satisfactory and the application for leave to appeal against conviction is dismissed.

8. In respect of the appeal against sentence, we would say that we would have made the sentences on the second and third charges concurrent but consecutive to the sentence on the first charge, in that the second and third charges were clearly related whereas the first charge was an immigration offence. However, the result is the same, that is 41/2 years' imprisonment so we will not interfere. The sentences in respect of the first two charges were not in any way exceptional, and the judge quite properly took the view that the third charge, the attempted wounding, was a serious charge. It was by sheer good luck that the Sergeant avoided being very seriously injured. The judge took into account the age of the applicant, and the fact that he had been injured in the course of the incident.

9. We find that the sentence in totality that he reached was quite proper and not in any way manifestly excessive or wrong in principle and leave to appeal against sentence is dismissed.