Chan Sam v. The Queen
Read the full judgment text of CACC 402/1968 on BabelCite. This Court of Appeal judgment was delivered on 22 August 1968 before Morley-John, J..
Criminal law – unlawful assembly – assaulting police officer – resisting arrest – appeal against conviction dismissed – appeal against sentence – fine of $3,000 – capacity to pay – Reg. v. Churchill – fine quashed – default imprisonment set aside – sentences of imprisonment affirmed – appellant was a carpenter earning $400 per month – no inquiry into ability to pay – principle that fine must be within offender's capacity to pay.
Legal issues: Proportionality of fine and inquiry into ability to pay
Outcome: Appeal against conviction dismissed; appeal against sentence allowed in part: fine of $3,000 and default imprisonment of 3 months quashed; other sentences affirmed.
Cited by 3 cases
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CACC000402/1968 IN THE SUPREME COURT OF HONG KONG APPELLATE JURISDICTION CRIMINAL APPEAL NO.402 OF 1968. -----------------
Coram: Morley-John, J. Date of Judgment: 22 August 1968 ----------------- JUDGMENT ----------------- 1. The appellant was convicted of three offences namely, unlawful assembly, assaulting a police officer and resisting arrest. He has appealed against conviction and sentence. The facts of the case are, briefly, that at about eleven o'clock in the evening of 11th June 1968 the appellant was among a crowd of about 200 persons who were shouting slogans in the vicinity of the junction of Apliu and Maple Streets. The appellant was standing on a chair shouting 'Down with Hong Kong British', 'Down with Running Dogs'. When a police party approached to disperse the crowd the appellant attacked one of the police officers with a chair but the police officer managed to ward off the blow with his riot shield. The police officer then attempted to arrest the appellant who struggled with him and it was not until another police officer came to his assistance that the appellant was overpowered and his arrest finally effected. 2. The appellant told me the same story as he told the learned magistrate that he was merely sitting on a chair calculating figures with a ball point pen, that he didn't know what was going on but that he was suddenly arrested and assaulted by riot police. 3. It is clear from the record that there was ample evidence on which the learned magistrate could find the appellant guilty and I therefore dismissed his appeal against conviction. 4. The appellant was sentenced on the first charge charge 'A' to eighteen months imprisonment together with a fine of $3,000 and in default of payment a further 3 months imprisonment. He was also sentenced to 9 months imprisonment on charge 'B' and three months imprisonment on charge 'C'; that the sentences on 'A' and 'B' charges would be consecutive and that of 'C' was to be concurrent; that the 3 months in default of payment of the fine on charge 'A' was also to be consecutive. The appellant has appealed against these sentences as being too severe. With regard to the sentences of direct terms of imprisonment I am satisfied that such sentences are not too severe and are in no way excessive. However, I am concerned with regard to the fine imposed upon the appellant of $3,000 and in default of payment a further consecutive sentence of 3 months imprisonment. It has been clearly laid down in such cases as Reg. v. Churchill and others (No.2)(1) that a fine should be within the offender's capacity to pay. In answer to questions put by myself the appellant stated that he was a carpenter earning about $400 a month and that he could not possibly pay this fine of $3,000. According to the record the learned magistrate made no enquiry as to the appellant's financial position, nor of his capacity to pay a fine of $3,000. Under the circumstances with regard to charge 'A' I allow the appeal against the fine of $3,000 and in default three-months imprisonment but on the other hand the appellant's appeal against 18 months imprisonment on charge 'A', 9 months imprisonment on charge 'B' and 3 months imprisonment on charge 'C' on the grounds that they are too severe is dismissed.
22 AUG 1963 Representation: Mr. Carolan for the Crown Appellant in person (1) (1966) 2 All E.R. 215 |
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