Chan Wah v. The Queen

CACC000314/1971

IN THE SUPREME COURT OF HONG KONG

(APPELLATE JURISDICTION)

CRIMINAL APPEAL NO. 314 OF 1971

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Coram: Huggins, J.

Date of Judgment: 29th June, 1971.

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JUDGMENT

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1. The Appellant was charged before the Magistrate with possession of an offensive weapon and with theft. He pleaded not guilty to both charges but after a trial was found guilty. He was sentenced to 3 months' imprisonment on the first charge and 12 months concurrent on the second charge.

2. The evidence for the police was, shortly, that the Appellant was seen by a police officer acting suspiciously. He was searched. On his person were found what is described as "a knife like a scout knife", which was 9 inches long overall, and a watch with a broken strap. He was asked about both these articles. He said the knife was for self-defence and that he bought the watch the day before at Temple Street. He was then cautioned and repeated that the watch was bought at Temple Street and that the knife was for self-defence. Subsequently at the police station he was reminded of his caution and said that the watch was snatched by him at the entrance of the lane in Shan Tung Street five minutes before his arrest and that the knife was used to threaten people to prevent his being chased. The Appellant has denied that that was a voluntary statement and says that he was told to write it in a note book but the learned Magistrate accepted "the Police evidence", which I take to include the evidence of the statement, and I see no reason to believe that he was wrong.

3. The Appellant has submitted to me that twelve months for theft of a small article was excessive and points out that the watch was broken. What in fact was broken was the strap of the watch, which would be consistent with his statement to the police that he had snatched the watch.

4. The Appellant is 24 years old. Despite his comparative youth he has been convicted on many occasions, six of those occasions involving either simple larceny or robbery with aggravation. As the learned Magistrate pointed out the Appellant has been caned, fined, placed on probation and detained in a Training Centre besides serving four sentences of up to 18 months' imprisonment. The Magistrate was of opinion that there was no suitable alternative to imprisonment and I am disposed to agree. He also said that he thought a suspended sentence was not appropriate. I agree with that, but not for all the reasons which were given by the Magistrate. It would appear from the Statement of Findings that the learned Magistrate thought that the knife was produced on this occasion, for he said "it was obvious that the threatened use of the knife would justify a more serious charge than that of theft" and I think he was not just indulging in an academic exercise when he said that but was implying that use of the knife had been threatened.

5. However, in all the circumstances I cannot think that a total of 12 months' imprisonment was an improper sentence even bearing in mind that the Appellant's own statements to the police led to his conviction. The appeal is dismissed.

29th June, 1971.

Representation: