Sin Hung Wai v. The Queen

CACC000403/1976

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Coram: Pickering, J.A.

Date of Judgment: 4th May 1976.

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JUDGMENT

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1. The appellant, a fisherman aged 28, was charged with dishonestly using without authority a quantity of electricity, the property of Sun Lock Construction Company. He pleaded guilty.

2. The facts were that at about 8:40 in the evening of the 16th March two patrolling police constables noticed a number of persons watching television outside No. 133-4 Connaught Road West. Two television sets were in operation and the electric supply came from a new building at 132 Connaught Road West from the first floor of which a wire emerged leading to the two television sets. The appellant admitted ownership of the sets and the watchman of the new building told the police that he had not authorised anybody to use electricity from the building.

3. On his plea of guilty and admission of those facts the appellant was sentenced to two months' imprisonment and at the same time a suspended sentence of six months' imprisonment imposed ten months previously was activated. That sentence was in respect of the theft of $190, apparently by finding. The total sentences amounted therefore to eight months' imprisonment.

4. The appellant was unrepresented in the court below but was represented on the appeal against sentence by Mr. Gunston who described his client as ineloquent and inarticulate. Inarticulate he certainly appears to have been in the court below for, having pleaded guilty and agreed the facts, he said not a word in mitigation of sentence.

5. There is no evidence before me as to the value of the electricity abstracted but this is far from being a case, not uncommon in Hong Kong, of a whole village tapping the mains for the purpose of heating, lighting and cooking. The electricity was not the property of the electricity company but of the construction company and it is not clear from the evidence whether or not the supply came originally from the electricity company or was a supply being generated by the construction company in the course of erecting No. 132 Connaught Road West. Whichever be the case the value of the electricity abstracted and used to operate two television sets must be very small and I think that to that extent I am entitled to take judicial notice of the cost of electricity. I cannot but think that in having eight months' imprisonment heaped upon him as a result of this trivial offence the appellant was being visited with draconian punishment. For the theft of a dollar's worth or two of power, the sentence of two months' imprisonment was in my view excessive and the activation of the suspended sentence wrong in principle. It is true that the new offence was similar in kind to that in respect of which a sentence had previously been suspended but it was so very different in degree that the activation of the suspended sentence was condign in the extreme. Apart from the two offences to which I have referred the appellant had only one previous conviction which was for larceny in 1964 when he was cautioned.

6. In all these circumstances I allowed the appeal, set aside the sentence of two months' imprisonment, set aside the order for the activation of six months suspended sentence (it having been open to the learned magistrate to make no order in regard to that sentence under s. 109C(1) (d) Criminal Procedure Ordinance (Cap. 221)) and sentenced the appellant to such term of imprisonment as would result in his immediate release upon the day of the appeal, that is 4th May 1976.

Representation:

Gunston of Gunston & Chow for appellant.

Little, C.C., for respondent.