Wong Kwan Choi and Another v. The Queen

CACC000473/1970

IN THE SUPREME COURT OF HONG KONG

APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 473 OF 1970

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IN THE SUPREME COURT OF HONG KONG

APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 475 OF 1970

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Coram: Rigby, C.J.

Date of Judgment: 23 September 1970

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JUDGMENT

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1. The two appellants in Criminal Appeal No.473 of 1970 pleaded guilty to the charge preferred against them of criminal intimidation. They were sentenced to 9 months' imprisonment and they now appeal against that sentence. Mr. Remedios, who appears for both appellants, has asked that Criminal Appeal No.475 of 1970, which concerns an appeal by three persons, should be taken together with Criminal Appeal No.473 because the facts are identical, the charges are the same, and the offences were committed on the same day although at different places. Mr. Stratton for the Crown agrees that it would be convenient for both appeals to be taken together, and I therefore propose to take that course.

2. The facts, indeed, are identical in both cases save, as I say, that they were committed at different places but on the same day. In each case the facts were that a driver of a minibus pulled up at a bus terminal with the object of taking passengers on board and in each instance he was approached, in the first case by the two appellants, and in the second case by the three appellants, and was told in effect that that location was reserved for other bus drivers and that he was not to pick up his passengers there and if he sought so to do then he would be beaten up. It is clear that in each case the bus drivers were perfectly entitled to pick up passengers at those particular locations and the appellants had no right whatsoever to prevent them from so doing, and still less had they any right to intimidate them with threats as to what might happen to them if they did not comply with the appellants' instructions to leave without picking up passengers.

3. But, even on those facts, there is no doubt whatsoever in my mind that the sentences of 9 months' imprisonment imposed upon the appellants in each of these cases was manifestly excessive. In seeking so to support the sentences imposed, the learned magistrate has made reference to an earlier case which came before this court, to wit, Criminal Appeal No.152 of 1970 in which this court supported a sentence of 15 months' imprisonment imposed upon three appellants in circumstances in which the facts were, to some extent, similar. In that case the three appellants had sought to interfere with the rights of minibus drivers to pick up passengers at a terminal at which they were legitimately entitled so to do.

4. There are, however, three distinguishable features in the cases now before me and that case. In that case there was evidence that the three appellants had, in fact, demanded money from the minibus operators; they were charged not with criminal intimidation but with the more serious offence of demanding money with menaces. Secondly, they were all also charged in that case with being members of triad societies and, thirdly, and in my view of very much greater significance, the three appellants in that case all had long records of previous convictions. The first appellant had no less than 12 previous convictions, the second had 7 and the third 13. In all cases the convictions were for relatively serious criminal offences.

5. In the present cases now before me, all the appellants, save the first appellant in Criminal Appeal No.475 of 1970, have clean records and have never been in trouble before. The first appellant, it is true, has a number of previous convictions but they are all, without exception, in connection with dangerous drugs offences. I take the view, to which I firmly adhere and which, as I understand it, is consistent with the view taken by the courts in the United Kingdom, that where you are dealing with first offenders they should not be sent to prison unless the nature of the offence is such that there is no other appropriate way of dealing with them.

6. I repeat that, in my view, the sentences imposed in this case were manifestly excessive having regard both to the facts of the case and to the clear records of the offenders. The appeal will accordingly be allowed and the sentences quashed. Bearing in mind that all the appellants have been detained in custody since the date on which they were convicted, the 4th August, 1970, a matter of some 7 weeks, and have been serving the sentence of imprisonment then imposed upon them, under Section 36 of the Magistrates Ordinance, the appellants will be released conditional upon each one of them entering into a bond to be of good behaviour and come up for sentence any time called upon within the period of the next 12 months. The bond will be each in their own personal recognizances of $250.00.

Representation:

L.J. D'Almada Remedios for All Appellants.

Startton, D.P.P. for Crown/Respondents.

(Judgment delivered)