Mak Kong-keung v. The Queen

CACC000242/1973

IN THE SUPREME COURT OF HONG KONG

(APPELLATE JURISDICTION)

CRIMINAL APPEAL NO.242 OF 1973

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Coram: Trainor J.

Date of Judgment: 10 May 1973

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JUDGMENT

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1. The accused was convicted on the 10th February this year on his plea of guilty on two counts : loitering; and going equipped for stealing; and was sentenced to 3 months and 6 months respectively. He now appeals against his conviction.

2. It was quite obvious from what the appellant, who was unrepresented, said in court that he really intended to appeal against sentence and he was heard on this.

3. The facts of the case are as follows:

4. At 00.10 on the 9th February the appellant was seen by two detective sergeants and to detective constables to be acting furtively. He was seen to approach a motor car and with his hands try to open the offside doors. He was unsuccessful and passed to a second car close by. He again tried to open the doors with his hands. Being once more unsuccessful he went to a third. He was there seen to take something out of his pocket to use to break open the door and the police at once approached and prevented him. He was found to have a large screw-driver in his hand. The accused failed to give a satisfactory explanation of his presence at the place or as to his intended use of the screw-driver.

5. Having regard to the appellant's record, nine convictions in six years, there was little scope for leniency however, Mr. Lucas who appeared on behalf of the Crown very properly drew the attention of the court to the unreported decision of the Full Court in Appeal Case No. 73/1972 NG Chun-ting and The Queen. In that, a similar case, the accused was seen tampering with locked bicycles and when approached was found to have a nail-clipper in his hand. He was charged with the same two offences as in the instant case and was sentenced to one month are six months respectively. On his appeal learned judge before whom the appeal came referred a question to the Full Court:

"[whether] it is proper in such a case that the sentence imposed on the second charge of going equipped for stealing be more than the three months which is the maximum under the Summary Offences Ordinance for being a suspected person found loitering".

6. Delivering judgment Rigby, C.J. said:

"For my part, I take the view that the principal offence is the one charged under the Summary Offences Ordinance of 'being a suspected person round loitering with intent to commit an arrestable offence, namely to steal'. It is the principal offence - not in the sense that it is inherently the more serious, clearly it is not, but simply in the sense that, on the facts disclosed, it is the substantive offence and the other is subordinate to it is that the mere possession by the accused of an article to which he resorted in an attempt to steal was simply an incidental of the fact supporting a loitering charge. Had the accused been intercepted and searched before his attempt to steal the bicycle it is very unlikely that he would have been charged with 'going equipped' on the evidence as to the nail-clipper and ... that he would have been convicted on that evidence alone. Although his plea of guilty in strict law supplies the want of evidence so that the conviction was perfectly proper, the nature of the implement and the circumstances generally make the case so nearly a nominal example only of the major offence that it should not have been regarded as the more serious charge for the purpose of sentence."

7. The learned Chief Justice then went on to say:

"Is should be stressed however that these observations have reference to the special and peculiar facts of the present case. In most instances, no doubt, what is the principal offence will rightly be determined by consulting the nature of the penalty provided by law; but that will not always be so when questions of sentence are being considered."

Later he said:

"Clearly, there must be some distinction between 'going equipped for stealing' and the sudden decision to use an article such as a nail-clipper for the purpose of furthering an attempt or an intention to steal ... Mere evidence of the sudden use of such a common place article, without evidence of prier intention for that purpose would not be sufficient, in my view, to support the averment of 'going equipped for stealing'"

8. I was also referred to the Appeal Case No. 234/73 CHENG Tai and The Queen.

9. Despite the fact that any possible defects in the decision of the court below would in strict law be covered by the plea of guilty and the fact that the appellant did not appeal against sentence I announced when I dismissed the appeal that I would hand down my reason for doing so.

10. In the NG Chun-ting case it is quite clear that the court considered the real offence - the substantive offence - to be that of loitering with intent and that the possession and sudden use of the nail-clipper was simply ancillary and an element of the evidence that justified a conviction on that charge. Had the accused been charged only with the offence of going equipped for stealing it is unlikely that he would have been convicted other than on a plea of guilty.

11. As the learned Chief Justice said there a distinction must be made between going equipped for stealing and the sudden use of an everyday article such as a nail-clipper; something which is so frequently carried in the pockets of the most innocent poeple.

12. But it is a iar cry from the facts of the Ng east to those of the present case. When one finds a person in the streets at midnight with a large screw-driver in his hands immediately after being stopped trying to break open the door of a motor car with it he is certainly equipped with an instrument very capable of being used for the purpose of stealing, and the circumstances of the case show that he intended to use it for that purpose. Indeed, his intentions are indicated in his plea. Moreover, the carrying of a large screw-driver, which is not usually found in the pockets of innocent people at midnight, and the appellant's confessed intention to steal indicate that his carrying of it was for the purpose of stealing.

13. In my opinion the effect of the decision of the Full Court in the Ng case is this: when a magistrate is faced with a case in which a person is charged as in the instant case he has to decide which is the real, or substantive, offence. He has no difficulty in deciding which is the more serious offence, the Legislature has decided that, but as the learned Chief Justice said, that is not the sole criterion. It is, however, an important element. If the magistrate finds that the more serious offence has been established by itself and that the components of it are not merely elements of the less serious charge then in my opinion he is entitled to treat it as the substantive charge irrespective of whether it is the first or second count. To put it another way: if the more serious charge of going equipped to steal is one which could be sustained if presented as the sole charge then it may be treated as the substantive offence and a greater penalty imposed if it is joined with the lesser offence of loitering.

14. In the Appeal Case CHENG Tai and The Queen Huggins J. felt, counsel for the Crown having conceded that the court has bound by the Ng decision, that he had no alternative but to reduce a penalty of 9 months imposed on a charge of going equipped to steal to one of three months; the same penalty as imposed on a first count of loitering. In that case the facts were almost the same as in the instant case. There was one fact however that was materially different. In that case the screw-driver was only found when the accused was searched, a fact which distinguishes it from the instant case.

15. Being of the opinion that in the case under appeal the substantive offence committed by the appellant was that of going equipped to steal, and having regard to the appellant's record I see no reason to interfere with the penalties imposed.

16. I am treating the case as an appeal against sentence and I dismiss the appeal.

Representation:

Appellant in person

Mr. Lucas, Ag.P.C.C. for Respondent