Tsang Tai and Others v. The Queen

CACC000269/1972

IN THE SUPREME COURT OF HONG KONG

APPELLATE JURISDICTION

CRIMINAL APPEAL NO.269 OF 1972

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Coram: Leonard, J.

Date of Judgment: 28th April, 1972.

Mr. Ming Huang for Appellants.

Mr. Marshall, C.C. for Crown.

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JUDGMENT

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1. The Appellants appeal against sentences of nine months' imprisonment imposed on each of them for possession of offensive weapons in a public place contrary to Sec.33(1) of the Public Order Ordinance. The brief facts of the case are that the appellants in the small hours of the morning of 17th March 1972 were in a private motor car which they had borrowed from a friend when they were stopped by alert police officers. They were searched, and each was found to have concealed in the waist band of his trousers an offensive weapon, in one case an ice pick, and in the other cases, knives.

2. The appellants are aged 17, 19 and 18 years respectively. They all have clear records. They explained the reason for their carrying the weapons as arising from fear that they might be assaulted. They were, all three, youths from Lau Fau Shan in the New Territories where they engaged in oyster fishing. They had nothing to say in mitigation when before the learned magistrate, and without further ado, he sentenced each of them to nine months' imprisonment.

3. The offence of which they were found guilty was not an excepted offence, but was one to which s.109A of the Criminal Procedure Ordinance applies.

4. The learned magistrate clearly obtained and considered information about the circumstances of the offence. He did not, however, have before him any particular information relevant to the characters of the appellants or their physical and mental conditions. He did not call for Probation Officer's reports nor did he call for reports from the Commissioner of Prisons as to their suitability for training. I appreciate that the learned magistrate may have been concluded that this offence of its very nature calls for a prison sentence and indeed, having regard to increase in crimes of violence committed in the Colony, I can sympathise with this view. However, I consider that he should, in any event, have called for such reports to assist him in determining the proper sentence to be imposed.

5. The appellants were charged with an offence under the Public Order Ordinance. The facts would equally well have supported a charge under the Summary Offences Ordinance. Under the Public Order Ordinance the maximum sentence which might be imposed is a term of two years; under the Summary Offences Ordinance the maximum is three months. The Full Court recently in Criminal Appeal No.100 of 1972 considered the propriety of a charge under the Public Order Ordinance in such a case as this and decided that there is nothing whatsoever improper in proceeding under the Public Order Ordinance in such cases. That was a case where the appellant had an offensive weapon in his possession which he admitted was for the purpose of robbery. The learned magistrate in that case also imposed a sentence of nine months' imprisonment. The appellant was alone at the time of the arrest and pleaded guilty. He was a man of 25 but he had a bad record and he was at the time of his arrest addicted to drugs. The Full Court considered that in those circumstances a sentence of nine months was excessive and stated

"The sentence in each case must depend, of course, upon the facts of each case. When the offence is committed in conjunction with others or where the offensive weapon is used to threaten a severe sentence is called for."

6. In this case each of the appellants committed the offence in conjunction with the others, but there is no evidence whatsoever that the offensive weapons were used, or were intended to be used, to threaten anybody. Throughout the appellants were in the car and no member of the public was aware that they were armed. In the course of his Statement of Findings the learned magistrate says as follows:

"It seemed to me that the rapidly increasing incidence of violent crime the frequently expressed concern of the public and the menace to their safety, the recent decision of the Legislature to lay charges in appropriate cases under the Public Order Ordinance for the express purpose of enabling more severe penalties and the obligation upon the courts to reflect in their decisions the policy of the legislature coupled with the actual circumstances of this case call for a substantial period of imprisonment."

I am puzzled by the learned magistrate's reference to "the recent decision of the Legislature to lay charges." The Legislature, of course, does not decide to lay charges. I think the learned magistrate may have been influenced, or misled, by a recent announcement in the press to the effect that the police propose (subject to the overall directions of the Attorney General) to prosecute offences of possession of offensive weapons under the Public Order Ordinance rather than under the Summary Offences Ordinance. That is an executive and not a legislative decision.

7. Looking at all the circumstances of this particular case, however, in particular the ages and the clear records of the appellants, I have no doubt but that the sentences imposed by the learned magistrate were manifestly excessive. He did not have, as I have had, the assistance of counsel on behalf of the appellants nor did he have the assistance of the very full Probation Officer's reports which have been supplied to me. While I should not like it to be thought for one moment that people may carry offensive weapons about with them in public places with impunity, the facts of this case were that no member of the public was placed in any terror or danger by the fact that these appellants had the knives in their possession. The knives were concealed on their persons and they themselves were in a car when they were stopped. It would be pure speculation to wonder what they might have done with the weapons had it not been for the efficiency and alertness of the police officer who intercepted and arrested them. In these circumstances I consider that, having regard to the family background of the appellants, the sentences should be set aside and probation orders imposed in lieu of them. The appeal is allowed and the appellants are placed on probation for a period of two years. It shall be a condition of the probation orders that the appellants shall reside at such place as the probation officer may from time to time require. It shall be a further condition that they shall report to the probation officer at such places and times as he may indicate during the period of probation.

Representation:

Mr. Ming Huang for Appellants.

Mr. Marshall, C.C. for Crown.