THE QUEEN v. LEE LO TO

1988, No. 985

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

H E A D N O T E

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

Sentence - Illegal immigrant - charged only with resisting arrest - illegality not aggravating factor.

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

Magistracy Criminal Appeal No. 985 of 1988

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

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

J U D G M E N T

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

1. The appellant pleaded guilty, before Mr. Jenkins at Kwun Tong Magistrates Court, to resisting arrest, contrary to section 36(b) of the Offences against the Person Ordinance, Cap. 212, and was sentenced to 12 months imprisonment. I allowed the appeal and reduced this sentence to one month. I now give my reasons.

2. The appellant is an illegal immigrant who had arrived in Hong Kong on the morning of his arrest. Two patrolling police officers were suspicious when they saw him loitering in Kwun Tong. He was unable to produce proof of identity and, when the officers tried to arrest him, he refused to be handcuffed and ran away. He was soon caught and, after a struggle, subdued.

3. The magistrate sentenced the appellant on the basis that he was an illegal immigrant, in spite of the fact that he was charged with no other offence. He accepted that the resistance was not serious and that the appellant had not used violence.

4. The magistrate cited R. v. Lam Chun Yan C.A. 622/85 in support of his decision to impose a sentence much heavier than usual for this offence.

5. In that case the appellant was charged with seven offences of blackmail and theft, all of which took place between 28th May and 4th June 1985. Evidence was also however given by the victims relating to events that took place in 1985, when similar threats were made by the appellant, which caused to move his address. The magistrate admitted this evidence and took it into account in sentencing the appellant.

6. Penlington J. (as he then was) reviewed the authorities and continued .

"The whole question of the admissibility of similar fact evidence is difficult and has occupied the time of Courts of Appeal on many occasions since Herschell, L.C.'s classic exposition of the principles in Makin some 90 years ago. In my view evidence of other offences can be considered in relation to sentence if either :

(i) The accused is given a list and specifically asked that they be taken into consideration. (The procedure set out by Diplock, L.J. in Anderson v. D.P.P. 67 C.A.R. 185 should be fo11owed.)

(ii)     Where the Crown proceeds on a sample charge but the accused fully aware that evidence of other offences will be called Mills v. R 1979 68 CAR 154. But if the charge is put forward as a single offence no evidence should be received to show that in fact it was only one of a series of offences. (Hutchinson v. R.) 1972 56 CAR 307.

(iii)     Evidence of another offence is relevant to determine the gravity of the offence with which he is charged i.e. that not only did his blood alcohol exceed the limit but also he was driving erratically (Lane v. Auckland City. Council) 1975 INZLR 353.

This last category clearly is the most difficult and particularly where the accused is not represented should be used only in rare, cases as normally all the evidence relevant to the charge will be clearly admissible.

    Here the counts were not samples, the accused was not given notice of the previous alleged offences, nor did he ask for them to be taken into consideration. The magistrate took the view that because the appellant had caused the victim to move his home some 2 years before the present demands were made, they were more serious. It is therefore I think going further than Lane v. Auckland City Council, where there was evidence that, not only did the defendant's blood alcohol exceed the limit, but it also affected his driving ability at the time. I do not think the Court there would have allowed in evidence that on a previous occasion, for which there was no charge, the defendant was seen driving dangerously. The "background" evidence must be directly relevant to the gravity of the offence charged and here I think it was only marginal and, bearing in mind that the appellant was not represented, I consider that it should not have been considered in relation to sentence."

The facts in this appeal are nowhere near those in the authorities cited by Penlington J. Provided a police officer has good grounds for attempting an arrest - as he did in this case it is irrelevant to the question of sentence for resisting the arrest, unless the totality principle is involved, that the appellant is guilty of some other offence.

7. In the case of illegal immigrants, it is only necessary to give the example of a serious offence than resisting arrest to show the unjustness - and indeed absurdity - of applying such a principle. Had the appellant been convicted of say, robbery, it could scarcely be contended that he merited a higher sentence than usual merely because he had recently - and unlawfully - arrived from China