Fung Chung v. The Queen

CACC000346/1973

IN THE SUPREME COURT OF HONG KONG

(APPELLATE JURISDICTION)

CRIMINAL APPEAL NO. 346 OF 1973

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Coram: Trainor, J.

Date of Judgment: 24 May 1973

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JUDGMENT

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1. The appellant, having pleaded guilty, was convicted of being a suspected person found loitering with intent to steal; and going equipped for stealing, and sentenced to three months and nine months imprisonment respectively; the sentences to run concurrently.

2. He now appeals against sentence.

3. The facts of the case are as follows:

4. About 18.10 hours on the 8th April, 1973, the appellant was seen moving around a number of parked cars. He was kept under observation for about ten minutes and was seen to try to open the doors of three cars. He was approached and was unable satisfactorily to account for his behaviour. He was searched and a wire hook was found in his trousers pocket. It was alleged that he was loitering with intent to steal and that the wire hook was to be used in connection with theft.

5. The accused has already about forty previous convictions sixteen of which were for similar offences and little can be said on his behalf that would inspire sympathy or encourage leniency. However, in a postscriptum to his Statement of Findings the learned magistrate referred to the unreported cases of NG Chun-ting v. R.⁽¹⁾ and CHENG Tai v. R.⁽²⁾. In the former 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 as in the present case, convicted on his plea of guilty and sentenced to one month and six months respectively, the sentences to run concurrently. On appeal the 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 the judgment of the Court, 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 found 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 in 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 circum-stances 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."

The learned Chief Justice then went on to say:

"It 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 prior intention for that purpose would not be sufficient, in my view, to support the averment of 'going equipped for stealing'."

In the case of Cheng Tai v. R.⁽²⁾ the accused was also charged as in the Ng case⁽¹⁾ and the instant case. He was seen going round a number of motor vehicles and, when searched, was found to be carrying a screw-driver. On conviction in the Magistrate's Court he was sentenced to three months and nine months respectively the sentence to run concurrently.

On appeal Huggins, J. said:

"Counsel for the Crown has at the outset conceded that I am bound by the decision in Ng Chun-ting v. R.⁽¹⁾ and that I must reduce the nine months' imprisonment to three months' imprisonment on the second charge. I have no alternative but to make the order."

7. In the post-scriptum the learned magistrate mentioned that the learned judge was not bound to follow the decision of the Full Court as the observations of the Full Court had reference to the special and peculiar facts of that case. With respect to the learned magistrate, Huggins, J. was bound by the decision of that case if he found that the circumstances of the two cases were the same. In other words if he was satisfied that the substantive charge against the appellant was loitering and that the possession of the screw-driver was only a factor that justified the conviction for that offence then he was indeed correct in considering himself bound by the Ng decision⁽¹⁾.

8. In a recent appeal before me, MAK Kong-keung v. R.⁽³⁾ the appellant had been convicted of the same two offences: loitering; and going equipped for stealing; and had been sentenced to three months and six months' imprisonment respectively. In dismissing the appeal I said:-

"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 great penalty imposed if it is joined with the lesser offence of loitering."

9. In the instant case the appellant was seen at 6.10 p.m. on the 8th April trying to open the doors of three motor cars which were parked in a car park. He was approached and on being searched a wire hook was found in his trousers pocket. When cautioned he admitted that he was loitering with the intention of stealing and that the wire hook was to be used in connection with theft. Be that as it may it was quite clear that whatever his intentions were when he tried the doors of those three cars, and I have no doubt he intended to steal, he did not make any use of the wire in trying to open the doors. There was nothing in the record to indicate that the wire hook in his pocket was any more susceptible to use in stealing than the screw-driver in the pocket of the accused in the case of Cheng Tai v. R.⁽²⁾ or the nail-clippers in the hand of the accused in the case of NG Chun-ting v. R.⁽¹⁾.

10. Reverting to the subjective test which I adumbrated in MAK Kong-keung v. R.⁽³⁾ could the charge of going equipped for stealing have succeeded as the substantive or a sole charge. It is true that any shortcomings in the evidence were overcome by the appellant's plea of guilty but as the Full Court said through Rigby, C.J. in the Ng case⁽¹⁾:

"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."

11. In the circumstances of this case and having regard to the decision in the Ng case⁽¹⁾ I allow the appeal to the extent that I reduce the term of nine months' imprisonment on the second count to three months, the same penalty as that imposed on the first count.

Representation:

(1) Crim. App. No. 731 of 1972 (a decision of the Full court)

(2) Crim. App. No. 234 of 1973.

(1) Crim. App. No. 731 of 1972

(3) Crim. App. No. 242 of 1973.