Yuen Hon-fai v. The Queen

CACC000190/1975

IN THE SUPREME COURT OF HONG KONG

(APPELLATE JURISDICTION)

CRIMINAL APPEAL NO. 190 OF 1975

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Coram: Full Court (Briggs, C.J., Huggins & McMullin JJ.)

Date of Judgment: 10 April 1975

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JUDGMENT

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McMullin J.:

1. The appellant was convicted of being in possession of an offensive weapon and received a sentence of two and a half years' imprisonment. There were two other charges tried at the same time. These alleged, (a), conspiracy to commit an affray and, (b), claiming to be a member of a Triad Society. At an early stage in the proceedings the appellant pleaded guilty to the Triad Society offence. The conspiracy charge rested largely upon a confessional statement which was made the subject of an enquiry upon voir dire and which was excluded by the District Judge. The appellant was acquitted of that offence at the conclusion of the prosecution case. In addition to his sentence of two months in respect of the Triad Society offence to run concurrently with the sentence upon the other charge. He appealed against his conviction on the first charge and there was also an appeal against sentence upon that charge.

2. We could find no substance in the appeal against conviction. The appellant's principal complaint was limited to the allegation that the learned District Judge had refused to let him say everything that he had wished to say in his own defence. The record discloses that it is very unlikely that any such limitation of his rights was imposed upon him. Moreover when he was asked to say before this court what he had wished to say, and had been prevented from saying in the court below, he contented himself with canvassing matters which had clearly been put before the court in the relatively extensive testimony which he gave at his trial. The evidence before the lower court clearly showed that the accused was one of a number of men who were seen by two police constables to emerge from two cars which drew up and parked near a resettlement estate building in Tonkin Street on the 20th of September 1974. Their behaviour aroused the suspicion of the police who watched the cars and saw the accused and the others return and re-enter the vehicles a short time later. The police then approached and warned the drivers not to move and upon this warning being delivered all the men who had been in the two cars, apart from the appellant and the two drivers, jumped out of the vehicles and ran off. The appellant was searched and a beef knife about two feet long was found wrapped up in red paper inside his waist-band. A number of other knives were found beside one of the cars. The appellant's explanation of his being at that place at the time in question and his description of the manner of his arrest were to say the least incoherent and unconvincing and we have no doubt that the learned District Judge was right to convict him upon the first charge.

3. The appellant was clearly in some confusion as to the question of sentence. Although he had appealed against the sentence on the first charge he evidently was of the opinion that he was only appealing against the concurrent sentence of two months imposed in relation to the Triad Society offence and when before this court he actually said that he wished to abandon that appeal. Although the matter is not entirely clear, it would seem from what he said to the court that the appellant may have regarded an appeal against conviction as being in some way incompatible with an appeal against sentence in relation to the same charge. It was intimated to him that he would be well advised not to abandon his appeal against sentence generally and the court then heard Mr. Lucas on the question of sentence. In the upshot we agreed with Crown counsel that the sentence of two and a half years was manifestly excessive in all the circumstances. From the record it appears likely that, as Crown counsel suggested, the learned trial judge, while acquitting the appellant of conspiracy to commit affray, was nevertheless influenced by the likelihood that an affray was in the offing. Even had the conspiracy been proved the sentence would have been a heavy sentence. We felt therefore not merely that the sentence which was imposed was unduly heavy, even were all the inferences suggested by the surrounding circumstances legitimately to be taken into account, but also that it was in principle wrong in view of the acquittal upon the conspiracy charge. For these reasons we allowed the appeal against sentence and substituted for the period of two and a half years a period of eighteen months to run concurrently with the existing sentence of two months' imprisonment on the Triad Society charge.

Representation: