Kam Hing Tat v. The Queen

CACC000397/1973

IN THE SUPREME COURT OF HONG KONG

(APPELLATE JURISDICTION)

CRIMINAL APPEAL NO. 397 OF 1973

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Coram: Li, J.

Date of Judgment: 31st May 1973.

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JUDGMENT

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1. This is an appeal against sentence. The Appellant was charged before the magistrate with the offences of robbery, contrary to s.10 of the Theft Ordinance, and of possession of offensive weapon in a public place, contrary to s.33(1) of Cap.245; to which offences he pleaded guilty.

2. The facts of which he admitted are as follows. On 16th April this year at about 12:15 hours on the 5th floor landings of the staircase No.75 Wong Chuk Street the Appellant intercepted a Chinese female and pointed a knife at her. He threatened her to keep. quiet and not to resist. He took from her an 13K white gold necklace with a pendant and a silver ring. He then ran downstairs. The victim pressed the alarm bell of the building and the main entrance of the building was then closed and locked. A report was made to the police and the Appellant was found by the police on the first floor landing and was seen dropping a knife from his right hand pocket. The stolen properties were also found in the vicinity of the first floor landing.

3. The Appellant had three previous convictions. The first one comprised of the offences of assault with intent to rob and three offences of robbery in 1968, for which he was sentenced to be put on probation for 18 months. On 15th October 1968 he was convicted with the offence of making a false report to a police officer. That the third conviction was that of robbery with aggravation on 31st December 1969, for which he was sentenced to be sent to the Castle Peak Boys' Home.

4. The learned magistrate having considered all relevant factors accepted his plea of guilty and sentenced the Appellant to imprisonment for two years in respect of the offence of robbery and to six months' imprisonment for the offence of possession of offensive weapon. In the Statement of Findings the learned magistrate says that:

"In determining that the sentences were to be served consecutively I was guided by the decision in R v. Faulkner reported at page 577 of the Criminal Law Review 1972 in which case it was held that when an offender carried a firearm with intent when pursuing his criminal intention he ought to receive a consecutive sentence, to discourage such conduct".

He goes on to say:

"I am of the opinion that knives, choppers, triangular files and other offensive weapons when carried in Hong Kong are every bit as lethal as a firearm and that it should be made known to would be offenders that if they do use an offensive weapon in the commission of a robbery they should expect an additional sentence.

5. In support of his appeal the Appellant has not advanced any reason against the consecutive sentences. All he did was to express his regret and remorse for the offences he committed. He frankly admitted that he deserves the punishment. He had been given chance after chance and failed to take advantage of the changes he was given.

6. He has not advanced any reason with merit to suggest that either of the sentences was manifastly excessive. My only doubt is whether the learned magistrate is justified in making the two sentences consecutive. Let me add at once that Looking at the sentences as such I cannot say that taken individually either of the sentences is manifestly excessive. Unfortunately at the time this appeal was heard I failed to locate the report of the case of Reg. v. Faulkner except a passage in the Criminal Law Review 1972 at p.577. Nor was counsel for the Crown able to direct my attention to any other report of the same case. The fact of that case is that the appellant was convicted of conspiracy to steal, possession of firearm with intent to commit an indictable offence and using it with intent to resist arrest, having no firearm certificate, having articles for theft and assault occasioning actual bodily harm and assaulting a constable. He, the appellant, and another were seen on the roof of a warehouse by police officers. His face was covered with a neckerchief and he was wearing gloves. There was a chase in the course of which he produced a pistol and threatened to shoot a constable and then assaulted him with the butt of the pistol. He was sentenced to three years' imprisonment for the firearms offences and three years consecutive for the other offences. His previous conviction was that of one of forgery in 1963 and fined for a number of dishonesty abroad which the court disregarded. It was submitted that it was wrong to pass consecutive sentences for offences forming part of one transaction, and the decision was this. The rease given was that when an offender carried a firearm with intent when pursuing his criminal intention he ought to receive a consecutive sentence, to discourage such conduct and that it was, however, necessary to look at the total sentence. It was found that six years was not too long for the offences. Looking at the facts of the case of Faulkner so reported it is not clear whether the consecutive sentences were imposed because the firearm offences were completely different trans actions from the offences of stealing or that the consecutive sentences were imposed despite the firearm offences were part and parcel of the other offences. Had the reason been that of the former I would have thought that the present case is distingnishable from the Faulkner's Case. In the present case the knife was used in the robbery and the possession of it was part and parcel of the offence of robbery. As such, in principle, a concurrent sentence would be correct.

7. Learned counsel for the Crown at the hearing of the appeal conceded that the possession of a knife must have been part and parcel of the robbery. He frankly informed the court that had he been advising the draft of the Charge Sheet he would have just preferred only the charge of robbery. However, it is his submission that the court must give consideration for the total sentences imposed even though they are consecutive. The total sentence in the present appeal is one of 2 ½ years.

8. I dismissed the appeal on the principle that looking at the total sentence it is not excessive. I said I would give my reasons later.

9. My attention has since been directed to a full report of the Faulkner's Case in 1972 Cr. App. R. 594. From the judgment of the Lord Chief Justice it as abundantly clear that the sentences in that case were ordered to be consecutive even though the possession of firearm was part and parcel of the other offence The Lord Chief Justice said at p.596: -

"First of all as regard the sentences being consecutive it should be recognised now that where an offender carries a firearm, with intent, when pursuing has criminal intention, he can expect and will receive a sentence of imprisonment consecutive to that which would otherwise be imposed upon him and then that will be attributed to the use of the firearm It is very important that this matter of sentencing practice should be appreciated at a time when every possible course must be taken the courts to persuade people not to carry firearms. Therefore in this case where the second sentence of three years was made consecutive and was one relating to the carrying of a firearms this Court would wish to stress that that was a perfectly proper approach to the problem, and one which should be follower. However, at the end of the day, as one always must one looks a the totality and asks whether it was too much".

10. In my opinion a knife is als a lethal weapon. The crime of violence is prevalent in Hong Kong. The learned magistrate is amply justified in ordering the sentences to be consecutive by correctly applying the principle as stated in Faulkner's Case.

Representation:

Appellant in person

Ian Marshall, c.c. for Respondent.