The Queen v. Too Hung Fong

HCMA001581/1990

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY CRIMINAL APPEAL NO. 1581 OF 1990

___________

BETWEEN

____________

Coram: The Hon. Mr. Justice Kaplan in Court

Date of Hearing: 22 November 1990

Date of Judgment: 22 November 1990

______________

JUDGMENT

___________

1. This is an appeal against sentence. The sentence being that the appellant be sent to a Detention Centre. He was arrested on the 1st October this year and was convicted on his own plea on the 3rd October and was sentenced on the 17th October to a period in a Detention Centre. The offence with which he was charged was the Wasteful Employment of Police time, contrary to section 91(2), Cap. 221.

2. The magistrate, in my judgment, rightly took a very serious view of this matter. Briefly what had happened was that there had been a murder in which a badly decomposed and dismembered body was found inside a water tank. The identity of the deceased and the cause of death had not, by the end of September this year, been established.

3. On the afternoon of the 30th September, a police officer received a phone call, from a man later known to be the defendant who said his name was Li Wai Kwong and that he was the culprit and that he wanted to surrender to the Police. The investigation officers then conducted record checks from the Registration of Persons Office and obtained a list of more than 50 people with this name and with different addresses and a number of these people were interviewed by the Police and houses were searched all to no effect. As if this was not enough, on the 1st October 1990 the Police received a phone call via their hotline, and the caller was again the defendant. He identified himself as a taxi driver. He told the Police that eight days ago when he was on duty he picked up a male passenger who was carrying some foul smelling bags and he gave a contact number. Eventually, he was traced and admitted what he was doing and he made all this clear in his statement.

4. The Police have said that some 969.5 man-hours have been wasted and Mrs. Robertson, who did not appear in the Court below, says that had the defendant been represented on the 3rd October, it is possible that there would have been some watering down of the number of man-hours. She said one was only dealing with two days and 900 hours is an awful lot of hours spent on this investigation in the course of two days.

5. The magistrate had this evidence before him. This was a serious police investigation into a nasty murder. A number of people were interviewed and I am not in a position nor was the magistrate to gainsay the 969 hours. This was, therefore, a very serious offence of wasting the employment of the Police.

6. The fact that the appellant has some minor convictions do not really assist very much in this case. The Magistrate clearly thought it was a very serious matter. He gave very long Reasons for his Decision and reports were called for and the report recommended that probation was suitable. What the magistrate did do, as can be seen from page 14 at the end of his Reasons for Sentence, was to put his mind to the fact that the maximum prison sentence for these offences was 6 months. He said that a detention centre order allowing for the usual remission for good behaviour was close to the maximum that would be imposed with the additional factor that a detention centre involves more vigorous conditions. He took into account that the detention centre order was more rehabilitatory. With great respect to the learned magistrate, this is not a helpful way of approaching sentencing. It has been said many times that sentencing courts should ignore completely the question of remission because although remission is frequently earned, it does not necessarily happen. There may be reasons why it is not earned and thus one ought to ignore the question of remission when considering sentencing.

7. Under the detention centre Ordinance, this appellant could remain in custody between 3 months and 12 months. He has already been in there 7.5 weeks and I was urged very strongly by Mrs. Robertson to say that really enough is enough, bearing in mind the nature of the offence, the nature of this defendant and the amount of time he has already spent in custody. She asked me to change the detention centre order to one of imprisonment and to make the term of imprisonment one which would entail his immediate release today.

8. I am prepared to go along with her submission to some extent but not completely. I think that what is more appropriate in a case such as this, bearing in mind the background of this particular appellant, was a short sharp shock in prison and, I think, that the appropriate period of time is one of 4 months and that would mean, I think, that his release would not be effective today but would be effective very shortly. I must however say this. Anyone who wastes police time in the way in which this appellant has, or even in lesser degrees, must expect a form of custodial sentence because the police, as we all know are very hard-stretched at the moment. They are under great pressure with a rising crime rate and for 900 hours to be wasted by two prank calls by this appellant is a monstrous waste of the police's time and people will have to expect, if they take part in activities such as this, that they will go to prison.

9. I, therefore, propose to allow this appeal by setting aside the Detention Centre Order and substituting for it the sentence of 4 months imprisonment.

Representation:

Mr. Alain Sham, Sr Crown Counsel for Crown.

Mrs. E. Robertson instructed by So & Co. for Appellant.