Choy Hon Sum v. The Queen

CACC000325/1976

IN THE SUPREME COURT OF HONG KONG

(APPELLATE JURISDICTION)

CRIMINAL APPEAL NO. 325 OF 1976

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Coram: The Hon. Mr. Justice Yang in Court.

Date of Judgment: 8th April, 1976.

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JUDGMENT

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1. The Appellant appeals against both conviction and sentence.

2. He was convicted of having in his possession an offensive weapon, i.e. a knife, in a public place under section 33(1) of the Public Order Ordinance and sentenced to two years' imprisonment. He was also convicted of having in his possession two packets of salts of esters of morphine under section 8(1)(a) of the Dangerous Drugs Ordinance and sentenced to three months' imprisonment. The two sentences were to run concurrently.

3. There was ample evidence before the learned trial magistrate to convict, and I am unable to find anything wrong with his findings. However I would make one observation on the way in which the Statement of Findings was presented to this Court. The finding of facts is extremely brief. It reads:

"A Detective Constable gave evidence that he found the offending articles on searching Appellant's person. The Appellant denied this and said the drugs had been picked up nearby. I accepted the evidence of the Constable, rejected that of the Appellant, and was satisfied beyond reasonable doubt that both charges have been proved."

4. There is no mention as to the quantity or nature of the dangerous drugs, nor what the weapon was. The notes of evidence simply referred to "one knife", and there was no description as to the type or size of the weapon. I reiterate here the necessity of furnishing such information in a Statement of Findings as would enable this Court to appreciate precisely what the essential facts of the case were.

5. The Appellant is 30 years of age and has five previous convictions; namely, possession of dangerous drugs in 1970, 1971 and 1975; four charges of robbery in 1972; and membership of triad society and possession of offensive weapon in 1975.

6. In the Statement of Findings, the trial magistrate, quite correctly, took into account the current climate of public concern at violence in Hong Kong, and regarded possession of offensive weapon as a serious offence. He also rightly took the view that the Appellant's record showed a disposition to violence. The learned magistrate felt that a deterrent sentence was called for in respect of the offence of possession of offensive weapon, and pointed out that this was the Appellant's third appearance in court in just over three years on a charge involving violence or potential violence.

7. In my judgment the total sentence of two years is in no way excessive. However the sentence of two years for the first charge is more than that normally given for that type of offence. I therefore reduce that sentence to one and half years. The sentence on the possession of drugs is on the other hand lighter than the usual term of nine months imposed for a simple drug offence such as the present one. The two offences being distinctly separate matters, consecutive sentences should have been passed. A sentence of nine months on the second charge consecutive to the one and a half years on the first charge would make total sentence of two and a quarter years, which may perhaps be a little too long. I therefore increase the sentence on the second charge to six months, consecutive to that on the first charge. The total sentence is two years.

8. The appeal is accordingly allowed to the extent that I have indicated.

Representation: