Suen Chi Keung and Another v. The Queen

CACC000474/1970

IN THE SUPREME COURT OF HONG KONG

(APPELLATE JURISDICTION)

CRIMINAL APPEAL NO. 474 OF 1970

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Coram: Rigby, C.J. in Court.

Date of Judgment: 24 September 1970

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JUDGMENT

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1. The two appellants, who were aged 29 and 44 respectively, pleaded guilty to the charge preferred against them of criminal intimidation. The facts of the case are virtually identical with the facts of the two appeals with which I dealt yesterday. In all three cases it is clear that the offenders - and in this case the two appellants - interfered with one or more drivers of minibuses who were seeking to make use of a particular place at which to pick up or put down passengers, and told them that they could not use that particular place for plying their trade. In this case it would appear that the first appellant, when the driver declined to comply with his instructions to move on, removed his leather belt from his waist and the second appellant, who was standing beside him, shouted to the complainant that they would beat him up. Fortunately, at that time there were police officers in ambush at the place. They saw what had happened and arrested the two appellants.

2. The first appellant has two previous convictions, one for robbery with aggravation in November 1966 in which, in respect of three counts of robbery, he was sentenced to 21 months' imprisonment on each count. Again, in November 1968, he was convicted of aiding and abetting illegal immigrants to remain within the Colony and he was sentenced to six months' imprisonment. The second appellant, on the other hand, has a clear record and has never been in trouble before. I am told that he has been employed for the past 23 years as a driver in the Forestry and Agriculture Department, and I am further told that as a result of his conviction and sentence it is probable that he will likely lose his employment and his pension and any gratuity to which he may be entitled. Those, of course, are matters at the moment of speculation.

3. However, I am quite satisfied that in this case the sentences of nine months imposed were excessive. In so far as the first appellant is concerned, he has two previous convictions. In those circumstances, the sentence will be reduced from nine months' to three months' imprisonment. In so far as the second appellant is concerned, the sentence of nine months' imprisonment will be set aside and in lieu thereof, under the provision of the Magistrates Ordinance, he will be discharged conditionally upon his entering into a bond in his own recognizances in the sum of $500 to be of good behaviour and appear for sentence any time he is called upon during the period of the next twelve months.

4. Before I leave this case, in view of the manner in which two similar appeals with which I dealt yesterday have been reported on the front page today of one of the leading newspapers in Hong Kong, I think it perhaps desirable, if not essential, that I should re-assert the reasons which prompted me to allow the appeals in those two cases and set aside the terms of imprisonment which had been imposed by the learned magistrate.

5. It is, as I understand it, a firmly established principle of penology that no person should be sent to prison unless the nature of the case is such, or the character and antecedents of the offender are such, that the court is satisfied that there is no other appropriate way of dealing with the offender except by the imposition of a prison sentence. That principle, in the case of persons under the age of 21, has been given statutory recognition and force by s.109(a) of the Criminal Procedure Ordinance which is in terms almost identical with the English legislation. In so far as adults are concerned it is only necessary to refer to a handbook entitled "The Sentence of the Court" a Handbook for Courts on the Treatment of Offenders, and issued under the auspices of the United Kingdom Home Office, in which this sentence appears at page 40 of the Handbook, and I quote:-

"Although there are cases where imprisonment is unavoidable, it is increasingly coming to be regarded as the sentence to be imposed only where other methods of treatment have failed or are considered inappropriate."

6. In the appeals that came before me yesterday I saw no reason whatsoever to believe that, having regard to the nature of the offence, a prison sentence was the only appropriate sentence. Other methods of punishment were clearly available including, of course, the imposition of an appropriate fine within the financial ability of the offender to pay; which fine, if necessary, could be paid over a period of time by way of instalments with, again if considered necessary, a term of imprisonment in default of payment of the fine itself, or of any instalment.

7. In the cases that came before me yesterday I was, furthermore, particularly influenced by two factors: first, that the offenders had no previous convictions and had never been in trouble before and, secondly - and it is, to my mind, a very important consideration - that the sentences had been imposed on the 4th August and that the appellants had been serving a term of imprisonment since that date - a period of seven weeks. That factor, to persons who had never been in prison before, should, in itself, have provided a sufficient lesson that offences of the kind to which they had pleaded guilty could not be committed with impunity. It was in those circumstances, and for those reasons, that I considered it proper to allow those appeals, set aside the orders of imprisonment and in lieu thereof order the appellants to enter into recognizances to keep the peace and be of good behaviour and come up for sentence any time called upon within the period of the next 12 months.

8. Some people appear to be under the impression that a binding - over is a somewhat weak and ineffective way of dealing with persons convicted of relatively minor offences; it is nothing of the kind; it means precisely what it says; it means that the offender, should he get into trouble and be convicted in any court within the period of the duration of the bond, shall be brought before the court which dealt with the original offence and punished for that original offence - in addition, of course, to the further offence which he has committed and which occasions the breach of the bond. The sentence of the court in respect of the original offence is, therefore, in effect, hanging over the head of the offender for the period of the duration of the bond and it depends solely upon the offender's good behaviour as to whether or not he is to be punished for that original offence.

Representation:

P. Fok (Thomas Wang & Co.) for both Appellants.

Stratton, D.P.P. for Crown/Respondent.

(Judgment delivered)