Lam Chun v. The Queen

CACC000386/1973

IN THE SUPREME COURT OF HONG KONG

(APPELLATE JURISDICTION)

CRIMINAL APPEAL NO. 386 OF 1973

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Coram: Trainor J. in Court

Date of Judgment: 6th June, 1973

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JUDGMENT

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1. LAM Chun was charged in a Magistrate's Court with loitering With intent to commit an arrestable offence and being in possession of an article that might be used in furtherance of a theft. To both charges he pleaded guilty and was sentenced to 3 months' and 9 months' imprisonment respectively; the sentences to run concurrently. The appellant has 61 previous convictions two of which are similar to the offences of which he Was convicted. He now appeals against sentence.

2. In a case of Ng v. Reg. ⁽¹⁾ heard by the Full Court as a result of a question submitted for its consideration by Huggins J. the court held that where the possession of an article really constituted a detail that went to establish by way of evidence the substantive charge of loitering a greater penalty ought not be imposed on a second count of being in possession of an article that might be used in furtherance of a theft although the second count was an offence which. carried a greater penalty. In that case the accused had been found tampering with a bicycle and when approached was found to have in his hand a nail-clipper.

3. In a subsequent case CHENG Tai v. Reg. ⁽²⁾, an appeal from the magistrate's decision before Huggins J., the accused had been seen going from motor car to motor car and trying to open the doors. When approached and questioned and eventually searched he was found to have in his possession a screw-driver. He admitted that he had the screw-driver for the purpose of helping him to steal. Despite the plea of guilty in ...(illegible) the cases to which I have referred the respective courts reduced the penalties on the second count to penalties which were the same as those imposed on the first count.

4. In the Ng case the learned Chief Justice in delivering the judgment of the Full Court stressed that the decision and the observations then made had reference to the special and peculiar facts of that case.

5. In a recent decision in MAK Kong-keung v. Reg.⁽³⁾ I dismissed an appeal where the counts were as in the instant case and the appellant had been sentenced to 3 months and 9 months respectively. In that case the appellant was seen trying to open the doors of a number of motor cars, and on being unsuccessful, to take something out of his pocket. He was about to use what he had taken from his pocket and he apprehended. He was found to have a screw-driver in his hand. Distinguishing that case from the two to which I have just referred I held that there existed it those different circumstances which the Full Court visualised when in the judgment in the Ng case it said that each case must be judged on its own circumstance. I held that the test must be a subjective one. I considered that when a magistrate is faced with these two counts he has to decide which is the substantive one. If he finds that the count of possession of an article which might be used in the furtherance of a theft is one which could stand on its own as an individual count, as distinct from the incidents of it being evidence to support the count of loitering, than he is justified in imposing a more severe penalty on it. In the case to which I am referring the appellant had actually commenced to use the screw-driver in the furtherance of his theft. It was my opinion that if there had been only one charge against the appellant, that of being in possession of an article, the charge could have been sustained against the appellant.

6. In the instant case the accused was in possession of a piece of wire which was in his pocket. He had according to the facts of the case tried to open the doors of the motor cars but at no time had he taken this wire out of his pocket to help him do so. Had the appellant been apprehended before he approached these motor cars, searched and the wire found on him and been subsequently charged with being in possession of an article for theft only it is indeed doubtful if he could have been convicted on that charge.

7. In my opinion the instant case is on all fours with the Ng case and the case decided by Huggins J. In the circumstances I allow this appeal to the extent that the penalty of 9 months imposed on the second count is reduced to one of 3 months.

Representation:

Appellant in person

Mr. Harte, C.C. for Respondent

(1) Criminal Appeal No. 731/72.

(2) Criminal Appeal No. 234/73.

(3) Criminal Appeal. No. 242/1973.