Wong Man v. The Queen

CACC000402/1976

IN THE HIGH COURT OF HONG KONG

(APPELLATE JURISDICTION)

CRIMINAL APPEAL NO. 402 OF 1976

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Coram: Trainor, J.

Date of Judgment: 29 April, 1976.

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JUDGMENT

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1. The appellant in this case was convicted on his plea of guilty on the 27th of February of this year of being a suspected person found loitering with intent to commit an arrestable offence and on a second count of having with him other than at his place of abode articles for use in the course of burglary.

2. On the following day, the court having seen the accused's record which contained 22 previous convictions imposed a sentence of 3 months' imprisonment on the first count and 9 months' imprisonment on the second count, the sentences to run consecutively. His appeal is against sentence. Very briefly, the facts are that on the 22nd of February of this year the appellant was seen by a police officer loitering in the bushes behind a house on Island Road and shortly after it was noted that he was attempting to climb over a barbed wire fence. He was arrested and questioned and did not give any explanation as to why he was there except, perhaps, by asking was it an offence just to walk around. The appellant was searched and in his possession was found a torch and pair of gloves. When he was asked to explain the reasons for them he failed to give any reasons.

3. As Mr. Sanguinetti has pointed out, the two offences exist on the same facts. In order to convict of loitering with intent it would have been necessary to establish that he had these things in his pocket as indicative of his intent to commit an arrestable offence and, therefore, the two offences are inextricably linked up and should accordingly have attracted concurrent penalties. I would order any sentences imposed to be served concurrently and I allow the appeal to that extent.

4. The second point made by Mr. Sanguinetti is that although the accused has got 22 previous convictions they have stretched over a considerable number of years and the last conviction was in the year 1974 when the accused was sentenced to one day's imprisonment for escaping from lawful custody. His previous conviction to that was in 1971 when he was sentenced to a total of 9 months on three offences. Prior to that he had been convicted in 1969.

5. Although there are 22 convictions none of them are of considerable gravity and on no occasion has the appellant resorted to violence. It does not appear on the record that the magistrate adverted to the fact that it is almost two years since the appellant was previously convicted and had he done so he might perchance have been somewhat more lenient than he was.

6. There is no doubt that the appellant is what is so often called "an old lag" and as pitiful as such usually are. Perhaps if he is given an opportunity of a reduced sentence he will appreciate that some effort has been made on his behalf, and he may make some effort and turn over a new leaf.

7. I am not going to order either a suspended sentence nor probation as suggested by Mr. Sanguinetti but I will reduce the penalties to two months on the first count, four months on the second count, the sentences to run concurrently.

Representation:

Mr. A.J. Sanguinetti (W.K. Poon & Co.) for appellant.

Mr. S.T. Graham, C.C. for respondent.