HKSAR v. LEUNG PING WA

HKSAR v. LEUNG PING WA

The magistrate did not err in considering the appellant's prior relationship and the previous rape complaint because those facts were properly before the court and were relevant to the degree of concern caused and therefore to culpability for loitering; the six month starting point for loitering was appropriate, but the starting point for resisting arrest was excessive and was reduced with part of that sentence ordered consecutive, producing a total effective sentence of five months' imprisonment.

Citation
HKSAR v. LEUNG PING WA
Parties
Appellant: LEUNG PING WA; Respondent: HKSAR
Court
Court of First Instance
Jurisdiction
Hong Kong
Judgment Date
5 January 2006
Case Number
HCMA1038/2005
Procedural Posture
Magistracy Appeal Against Sentence / Judgment on Appeal in the Court of First Instance
Outcome
Appeal against sentence for loitering dismissed; appeal against sentence for resisting arrest allowed in part
Legal Topics
Loitering Causing Concern Under S160(3) Crimes Ordinance, Resisting Arrest Under S63 Police Force Ordinance, Sentencing Starting Points, Concurrent Versus Consecutive Sentences, Use of Background Facts in Sentencing
Source Language
EN
Criminal Law Sentencing Police Powers Loitering Causing Concern Under S160(3) Crimes Ordinance Resisting Arrest Under S63 Police Force Ordinance Sentencing Starting Points Concurrent Versus Consecutive Sentences Use of Background Facts in Sentencing

Case Brief

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Parties

LEUNG PING WA

Appellant

HKSAR

Respondent

Procedural Posture

Magistracy Appeal Against Sentence / Judgment on Appeal in the Court of First Instance

Legal Issues

  1. 1 Whether the magistrate erred in taking into account material facts not included in the brief facts (previous rape complaint) when sentencing for loitering
  2. 2 Whether the starting points (six months each) were excessive for the offences of loitering causing concern and resisting arrest
  3. 3 Whether sentences should run concurrently or partially consecutively to reflect culpability and protect police and to satisfy the totality principle

Ratio Decidendi

The magistrate did not err in considering the appellant's prior relationship and the previous rape complaint because those facts were properly before the court and were relevant to the degree of concern caused and therefore to culpability for loitering; the six month starting point for loitering was appropriate, but the starting point for resisting arrest was excessive and was reduced with part of that sentence ordered consecutive, producing a total effective sentence of five months' imprisonment.

Court Disposition

Appeal against sentence for loitering dismissed; appeal against sentence for resisting arrest allowed in part

Orders

  • Appeal against sentence for the loitering offence dismissed
  • Appeal against sentence for the resisting arrest offence allowed