Cheng Chi-kin v. The Queen

CACC000503/1979

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Coram: Roberts, C.J., Huggins, J.A. & Leonard, J.

Date of Judgment: 30 August 1979

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JUDGMENT

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Roberts, C.J.:

1. The applicant was convicted on two charges, one of theft of two helmets and a key, the other of handling stolen goods, namely, a watch.

2. The first charge related to the theft of two helmets which were left by a Mr. Yeung Siu-tim with his motor-cycle in Parkes Street in Kowloon on the 21st December of last year. When he returned to the place where he left the cycle, he found that the helmets and the key had been stolen. They were subsequently recovered (and it is not necessary for the purposes of this application to go further into how this occurred) from the possession of the applicant.

3. The second charge related to the handling of a Sandoz wrist watch, which was pawned by the applicant on the 31st December. It had, according to him, been given to him by a friend of his. That watch was subsequently identified by a taxi driver as having been stolen from him in the course of a robbery which had taken place on the 25th December.

4. Mr. Leung has submitted to us that the sentences of one year's imprisonment and nine months' imprisonment consecutive, making a total of twenty-one months, are excessive.

5. It is clear that the judge, when imposing these sentences, was strongly influenced by the applicant's record. He was born in January, 1958, and is, therefore, twenty-one. He already has six previous convictions, on four appearances in court. He has been bound over twice; he has been fined; he has been put on probation; and he has been sent to a detention centre. Clearly, in the judge's view, with which we do not disagree, the time has come for a sentence of imprisonment to be imposed, other methods of treatment having apparently failed.

6. This is, however, the first occasion on which the applicant has been sent to prison, and this is a factor which ought to weigh with courts when deciding the proper term which should be imposed upon a man of this age. In relation to the offences themselves, the property involved in the case of the first charge was small, consisting of two helmets and the key. The value cannot have been great. We also take into account the fact that the owner of the helmets had left them unguarded in a public place. On the second conviction, one wrist-watch was involved.

7. Adopting the approach urged upon us by Mr. Leung, that we should take an overall view, we have come to the conclusion that a proper total sentence of imprisonment in this case should be twelve months. We can either achieve this by imposing sentences of nine months and three months, or by leaving the sentences as they are, but ordering that they should run concurrently instead of consecutively, and we are inclined to take the second course.

8. In the result, therefore, the application for leave to appeal against sentences is granted and we order that the sentences of one year's imprisonment and nine months' imprisonment should run concurrently and not consecutively.

Representation:

F. Leung (D.L.A.) for appellant

Duncan for crown/respondent