Chan Kam Sun v. The Queen

CACC000400/1968

IN THE SUPREME COURT OF HONG KONG

APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 400 OF 1968

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Coram: Hogan, C.J.

Date of Judgment: 4 September 1968

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JUDGMENT

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1. This appeal, which is against sentence, has caused me some anxiety.

2. The appellant pleaded guilty in the court below to the charge, which was that, on the 27th June with intent to defraud, he obtained from LEUNG Chun Wah $20 by falsely pretending that the employer of the said LEUNG Chun Wah owed him $20 lost in a mahjong game.

3. It appears from the facts which were admitted in the court below that the appellant stopped the complainant, who was driving a mini-van, by pulling a car across in front of the van and then came over to the complainant and told him a story that the complainant's employer owed the accused $20 which had been lost at a mahjong game and that he, the employee, was to pay over this sum. It seems somewhat surprising that any employee should in the circumstances, without further enquiry, pay over the money but, apparently, that was that happened.

4. When this appeal opened the appellant said that he was suffering from a sore throat and was unable to speak and consequently requested an adjournment. From the record it appears that when the case was originally set down for hearing before another judge, he also complained of feeling unwell and asked that the case be adjourned on that occasion to which request the judge assented.

5. It did not appear to me that his request for an adjournment in the present circumstances was bona fide or that he was in fact suffering from any real disability. When I refused to adjourn the case he quickly found enough powers of articulation to be able to say what he wanted.

6. The magistrate in the court below imposed a sentence of 15 months' imprisonment. The appellant is not deserving of any sympathy. He has a long string of convictions here, many of them for dishonesty, and he appears to be a man who is aiming to live by dishonest means rather than by work of any kind. My anxiety has been whether this sentence, having regard to the facts, is really commensurate with the offence of which the accused has been convicted or whether it may have been influenced unduly by the long record of previous convictions which were, of course, before the magistrate who sentenced him.

7. This question has been considered by the courts in Hong Kong on one or two previous occasions. In the case of Li Lam v. The Queen⁽¹⁾, the headnote says:-

"In passing sentence on a person convicted of an offence where he has had previous convictions, the Court should not sentence him 'for' his past record. The Court on being made aware of a person's criminal record, should take account of that record for the purpose of ascertaining the type and kind of individual before the Court and should use that information for the purpose of determining the appropriate sentence to be imposed."

8. The matter was also dealt with by the Full Court in the case of Wong Wai Hung v. The Queen⁽²⁾ where the headnote says:-

"Although an accused person's record should be taken into consideration as showing the kind of man he is and the probable effect upon him of the punishment proposed, he should not be sentenced again for crimes for which he has already been punished."

9. In the present case I have, though with some considerable hesitation, indeed with some reluctance, come to the conclusion that for this particular offence involving the sum of $20 only which was handed over in circumstances that are a little puzzling, a sentence of 15 months' imprisonment is excessive.

10. Counsel for the Crown has suggested that possibly the magistrate in the court below, when imposing this sentence, was influenced by the suggestion which emerges from the facts that there was some threat or menace involved in what occurred, otherwise it would be difficult to see why the complainant should have handed over the money so easily. It may be that one is justified in having some suspicion of that kind but the appellant was not charged with an offence involving violence and I don't think that the admitted facts are sufficiently clear and cogent to allow one to take this factor into account in imposing a sentence. I am left with the impression that the accused's very bad record did play an undue part in imposing this comparatively lengthy sentence for what was not a very large sum of money and I have decided that in these circumstances it would be right to alter this sentence to one of 9 months' imprisonment.

Representation:

Appellant in person.

Sandor C.C. for Respondent.

(1) (1961) H.K.L.R. 404

(2) (1965) H.K.L.R. 629.