Kwok Yip Shing v. The Queen

CACC000431/1974

IN THE SUPREME COURT OF HONG KONG

(APPELLATE JURISDICTION)

CRIMINAL APPEAL NO. 431 OF 1974

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Coram: Briggs, C.J., Huggins & Trainor, JJ.

Date of Judgment: 25th July 1974

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JUDGMENT

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1. This appeal was referred to the Full Court by the single judge. It is an appeal against sentences imposed in respect of offences charged in two different cases. On 13th May 1974 the Appellant was convicted of being a suspected person found loitering with intent and of going equipped for stealing. It was then disclosed that on 26th May 1973 he had been given suspended sentences of imprisonment on four charges:

Those four sentences were ordered to run concurrently but were suspended for eighteen months.

2. In respect of the new offences the learned magistrate imposed sentences of two months' and seven months' imprisonment concurrent. He then ordered, in effect, that the first two sentences in the previous case should take effect with the original terms unaltered but that each of the second two should take effect with the substitution of a lesser term of five months' imprisonment, all those sentences being concurrent with each other but consecutive to the sentences in the new case. The result was that the Appellant was to serve a total of twelve months' imprisonment.

3. The learned magistrate did not, as he was enjoined to do by s.109C(1) of the Criminal Procedure Ordinance, give reasons for not having ordered that the suspended sentences should take effect with the original terms unaltered, nor does it appear to us that there was any sufficient reason for a variation. The learned magistrate himself said that he thought the total of the sentences was, if anything, on the lenient side, so he can hardly have varied the original terms because he thought a total of thirteen months' imprisonment would have been extravagent. We have been driven to the conclusion that an order should have been made under s.109C(1)(a) in respect of all the sentences imposed on the Appellant in 1973. We therefore allow the appeal and substitute such an order for that made by the learned magistrate.

4. We then turn to the sentences imposed for the new offences. The equipment found upon the Appellant was a small piece of razor blade and it was apparently between the fingers of his right hand. There was evidence, which we think the learned magistrate must have accepted, that upon his arrest the Appellant said

"I intended to use the half piece of razor blade to pick people's pocket".

What we have to consider, therefore, is whether the case is distinguishable from Ng Chun Ting v. Reg. Cr. App. No. 731 of 1972 and, if not, whether that case was rightly decided. Ng was seen to approach a bicycle resting against a pavement and he appeared to be attempting to remove the bicycle. He was unable to do so because the wheel was locked. He then approached another bicycle and tried to take it away. This also was locked. He walked further down the street and approached another bicycle, which was also locked. He was next seen to take out of his pocket what was subsequently discovered to be a nail clipper. He pleaded Guilty to charges of being a suspected person found loitering with intent to commit an arrestable offence and of going equipped for stealing and he was sentenced to one month's imprisonment and six months' imprisonment respectively. This Court allowed an appeal against sentence and substituted sentences of three months' imprisonment on each charge concurrent. It is not clear whether the only judgment in the record was intended to be the judgment of the Court, but Rigby, C.J. said that in his view "the principal offence" (as distinct from "the major offence") was there the one of loitering, although the other carried the heavier maximum sentence. He was influenced by the fact that the nail clipper was a common-place article and he said:

"Clearly, there must be some distinction between going 'equipped for stealing' and the sudden decision to use an article such as a nail clipper for the purpose of furthering an attempt or an intention to steal. The phrase 'going equipped for stealing' to my mind connotes either the possession of an instrument commonly used or associated with an unlawful purpose, such as a jemmy, or independent and affirmative evidence to establish that the person found in possession of an article commonly carried such as in this case, a nail clipper, had purposely set out with the intention of using that article for an unlawful purpose, namely to steal. Mere evidence of the sudden use of such a common place article, without evidence of prior intention for that purpose, would not be sufficient, in my view, to support an averment of 'going equipped for stealing'".

The learned judge was impressed by the fact that if Ng had been intercepted and searched before his attempt to steal the last bicycle he could not have been convicted of "going equipped for stealing" unless he pleaded Guilty. He concluded that

"The nature of the implement and the circumstances generally make the case so nearly a nominal example only of the major offence that it should not have been regarded as the more serious charge for the purpose of sentence".

It is this conclusion which we think is open to question. It appears to suggest that, despite his plea of Guilty, Ng had not "purposely set out with the intention of using [the nail clipper] for an unlawful purpose". In Cheung Tai v. Reg. Cr. App. No. 234 of 1973, counsel for the Crown having conceded that the Court was bound by the decision of the Full Court, Huggins, J. felt constrained to reduce a sentence of nine months' imprisonment imposed for going equipped for stealing where, upon his arrest for loitering with intent, Cheng had been found with a screwdriver in his pocket. In Mak Kong Keung v. Reg. Cr. App. No. 242 of 1973 Trainor, J. distinguished that case on the ground that a screwdriver was found in Mak's hand in circumstances which indicated an intention to use the tool to break open the door of a car.

5. We are disposed to reject the distinction drawn by Rigby, C.J. between "the principal offence" and "the major offence": the Legislature has prescribed the greater maximum sentence for going equipped for stealing and we do not think that the seriousness of an offence is affected by whether a defendant pleads Guilty or is proved to be guilty upon evidence adduced, although a plea of Guilty may, of course, be a mitigating factor when one is considering what is the correct sentence. The open possession of equipment for stealing may be one of the reasons for the arrest of a person as a suspected person loitering with intent and may aggravate the offence of loitering, but that possession still is none the less a separate offence and we do not see why the separate offence should not carry the higher penalty.

6. We find it unnecessary to lay down any rule as to the order in which a court should deal with a suspended sentence and a sentence for a new offence: compare Ithell (1969) 53 Cr. App. R. 210 and Bocskei (1970) 54 Cr. App. R. 519. All the sentences must be considered together, but, particularly having regard to the terms of s.109C of the Criminal Procedure Ordinance, we think it preferable that wherever possible any allowance aimed at preventing an excessive total punishment should be made in fixing the new sentence: the effectiveness of suspended sentences depends in large measure upon their being activated without variation in the event of a further offence.

7. While we do not consider that seven months' imprisonment was too long for the now offence of going equipped for stealing, we are satisfied that the learned magistrate would not have imposed that sentence had he ordered the suspended sentences to take effect with the original terms unaltered. For that reason alone we reduce the sentence on the second charge to one of six months' imprisonment, so that the total of the terms which the Appellant has to serve will remain the same.

25th July 1974.

Representation: