Marco Mario Massimi and Others v. The Queen

CACC000535/1970

IN THE SUPREME COURT OF HONG KONG

(APPELLATE JURISDICTION)

CRIMINAL APPEAL NO. 535 OF 1970

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Coram: Rigby, C.J.

Date of Judgment: 5 November 1970

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JUDGMENT

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1. The three appellants, who are aged 29, 55 and 39 respectively - the first two being of Italian nationality and the third a Filipino - pleaded guilty to the charge preferred against them of escape from lawful custody. Upon their pleading guilty each of them was sentenced to 12 months' imprisonment in addition to the sentences that they were serving at the time. They now appeal against those sentences.

2. The first two appellants were sentenced to 4 years' imprisonment on the 14th November, 1969 having been convicted upon charges of possession and uttering counterfeit travellers cheques. The third appellant was sentenced also to 4 years' imprisonment on the 16th December, 1969, on the charge preferred against him of illegal possession of firearms.

3. It would appear that shortly after 7 o'clock on the morning of 10th August they escaped from Chimawan open prison where they were then serving their sentences, and they were not apprehended until the 18th August, some eight days later. It would also appear that a considerable body, or bodies, of persons, including the army and four companies of Police Tactical Unit, supported by helicopters, were concerned in searching for the appellants on Lantao Island before they were in fact recaptured. There is some evidence that their escape had been planned in co-operation with another person who was in fact at large and living in Kowloon at the time. Those are the essential facts of the case.

4. I have asked for, and Crown Counsel has been good enough to furnish me with, statistics of sentences imposed since April this year in relation to offences of this nature, of escape from prison custody. Those statistics confirmed the view that I already had that the normal sentences for offences of this nature vary from 3 to 6 months. There is one particular case which was referred to by one of the appellants, when complaining that the sentence of 12 months passed upon him and the two other appellants were far in excess of the normal sentence for offences of this nature. In that case, it would appear that there was a mass escape of 12 prisoners from Chimawan on the 2nd August this year. In effecting their escape it would appear that they did in fact seize hold of a prison officer and he was detained - I presume he was locked up - during such period as enabled them to make good their escape. It would seem no warder was actually assaulted or injured. The sentences in that case varied from 4 months to 12 months; 12 months being the sentence that was imposed upon its apparent ring-leader.

5. All three appellants now before me have complained that the primary reason why they escaped was because of the conditions to which they were subjected in the Chimawan prison at the time. The first appellant has dealt at some length with this in a written statement. Those are matters which do not affect this court, although I direct that a copy of the report he has put before me be sent to the Commissioner of Prisons for his consideration.

6. I have come to the conclusion that the sentences imposed in this case, bearing in mind the normal sentences imposed in such cases, were unduly severe. The appeal will therefore be allowed to the extent that the sentence will be reduced from 12 months to 6 months in respect of each appellant.

7. I should add that, as I understand it, it would appear from the record before the learned magistrate that the fact that they did escape does not appear to affect - or will affect - the one-third remission sentence normally and statutorily granted to a prisoner for good conduct. One might have thought that escaping from prison custody was in fact a breach of good conduct which would have disentitled a prisoner to remission. However, as I have said, it does appear from the record that it was expressly stated to the learned magistrate by Crown Counsel that the fact that they had escaped from prison custody would not affect their present entitlement to remission for good conduct; although, of course, whether or not they earn that remission depends necessarily upon their conduct in the future when serving their sentences.

8. The sentences of 6 months will, of course, be consecutive to the sentences that they are already serving.

Representation:

All Appellants in person.

M. Wong, S.C.C. for Crown/Respondent.

(Judgment delivered)