FONG TIM CHOY v. R.

IN THE COURT OF APPEAL

1993, No. 651
(Criminal)

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J U D G M E N T

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Hon. Yang, CJ

1. The applicant was convicted by Deputy Judge White on his own plea of the following charges, namely, (1) possession of forged identity card; (2) assaulting a police officer in the execution of his duty and (3) assaulting a person acting in aid of a police officer in due execution of his duty. He was convicted after trial to the offence of attempt to use arms without intent to resist lawful arrest for which he was sentenced to six years' imprisonment. The judge ordered that the sentence in this case to be served consecutively to a twelve years' sentence he was already serving for a robbery. He now seeks leave to appeal against the sentence of six years in respect of the conviction on the last charge, namely, attempt to use arms with intent to resist lawful arrest.

2. The facts of the case are straightforward. When police constable 14425 was checking the identity cards of the applicant and his companion in the street, they suddenly assaulted him by punching and kicking him. They attempted to snatch back from the constable their identity cards but failed. They then tried to escape, but were pursued by a passer-by. A struggle between the applicant and the passer-by ensued during which the applicant tried to hit his pursuer with a length of aluminium pipe. When the constable caught up with the two men, he too joined in the struggle. Then he saw the applicant taking his revolver out of his holster and that he had his finger on the trigger. They both fell onto the ground and the applicant was finally subdued.

3. Mr. Fenton acting on behalf of the applicant argues that the applicant's action was on impulse rather than premeditated and that the course of the struggle with the constable. There was no evidence that the applicant intended to fire the revolver. All these points were noted by the learned Judge when he dealt with sentence, and in our view the seriousness of the offence is not in any way diminished by the so-called lack of premeditation on the part of the applicant. The applicant was obviously a dangerous man and it could not be overlooked that in the course of the struggle with the police, the revolver could have been fired accidentally, thereby injuring innocent passers-by in the street. Cases which Mr. Fenton cited to us, namely the Queen v Ng Chun Keung Cr. App. 262 of 1992 and the Queen v Ho Chun 1992 1 HKCr LR 87, are not in our view authorities which call in question the correctness of the learned trial judge's approach in sentencing. The judge in this case took as a starting point ten years' imprisonment after trial but, having regard to the principle of totality and the fact that the applicant was serving a sentence of twelve years for robbery, he imposed the sentence that he did. We cannot say that the sentence was either wrong in principle or manifestly excessive. The application is accordingly refused.