Cheng Ka-hing v. The Queen

CACC000183/1975

IN THE SUPREME COURT OF HONG KONG

(APPELLATE JURISDICTION)

CRIMINAL APPEAL NO. 183 OF 1975

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Coram: Briggs, C.J.

Date of Judgment: 27th March, 1975.

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JUDGMENT

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1. This is a very unusual case. The appellant appeals against a sentence of nine months' imprisonment passed on him on the 4th February, 1975 for being in possession of dangerous drugs.

2. The facts were that at that time the appellant was serving a sentence of eight months' imprisonment passed on him on the 11th September, 1974 for another offence under the Dangerous Drugs Ordinance. The sentence of nine months passed on the 4th February was not, of course, excessive in view of the fact that at the time of the commission of this offence the appellant was serving a term of imprisonment in Stanley Prison. However, the appellant complained to the court that he had been sentenced for this offence on a previous occasion.

3. I adjourned the case when it first came before me so that Mr. Carolan, Crown Counsel, might make some inquiries to find out whether this was true. I am grateful to him for his researches which do, indeed, show that the appellant was correct.

4. What happened was this: While he was under the sentence which was passed on him on the 11th September, 1974 he was found to be in possession of dangerous drugs in Stanley Prison on the 26th December, 1974. He was therefore jointly charged with one Mak for this offence. The case came up on the 3rd January, 1975. The appellant pleaded guilty and was given a sentence of nine months' imprisonment to run consecutive to the sentence which he was then serving. His co-accused, Mak, pleaded not guilty and so his trial was postponed until the 4th February, 1975. On that occasion, Mak was tried with the offence of being in possession of dangerous drugs on the 26th December, 1974. Mak called the appellant as a witness and the appellant admitted that he, the appellant, was the person who was in possession of the dangerous drugs. Consequently, Mak was acquitted. At the trial, the magistrate directed that the appellant should be charged with the offence which he had admitted committing when he was called as a witness for Mak. The magistrate had forgotten that he had already sentenced the appellant for that offence on the 3rd January, 1975. The appellant, in view of the magistrate's order was charged with that offence again and he pleaded guilty. He was then sentenced to nine months' imprisonment. Unfortunately, the appellant did not tell the magistrate that he had already been convicted and sentenced for this offence.

5. It follows from the recital of the above facts that the appellant was correct. He did receive two separate sentences of nine months each for the one offence which was committed on the 26th December, 1974. In the event, I gave the appellant leave to appeal against conviction out of time in respect of the offence to which he pleaded guilty on the 4th February, 1975 and quashed that conviction and set aside the sentence. The result is that the appellant must serve the period of nine months imposed upon him on the 3rd January, 1975 which sentence was ordered to be served consecutive to the sentence which was imposed on him on the 11th September, 1974.

Representation:

Appellant in person.

...(illegible), c.c. for Crown/Respondent.