Fung Chun Wah v. The Queen

CACC000541/1971

IN THE SUPREME COURT OF HONG KONG

(APPELLATE JURISDICTION)

CRIMINAL APPEAL NO. 541 OF 1971

-----------------

-----------------

Coram: Pickering, J.

Date of Judgment: 2nd September, 1971.

-----------------

JUDGMENT

-----------------

1. The appellant was convicted upon his own plea of guilty of five offences of theft and sentenced to 5 months imprisonment on each charge, the sentences to run consecutively. He appeals against such sentences.

2. The sentence imposed were, in my view, perfectly proper except for one factor which was unknown to the learned Magistrate, that is, that had a certain general instruction of the Director of Public Prosecutions to Police Prosecutors been observed, the 2nd, 3rd, 4th and 5th charges would never have been brought. The instruction in question is to the effect that except in the case of very serious offences where the matter should be referred to the Legal Department for consideration, charges should not be brought where the only evidence is the uncorroborated confession of an accused. Such was the only evidence in relation to the 2nd, 3rd, 4th and 5th charges.

3. As I had occasion to observe in the case of LAW Shek-cham v. Reg. (Criminal Appeal No. 367 of 1971).

"The Attorney-General is the officer of the Government, who is empowered to bring prosecutions and he exercises that authority through the Director of Public Prosecutions. It is of the utmost importance that the authority and discretion vested in the Attorney-General should remain where it has been placed by the Legislature and that prosecutions not in accordance with the Attorney-General's policy should not be instigated by anybody else ............... It is wrong in principle that [accused persons] should be deprived of liberty because of a trespass, knowing or unwitting, upon the authority of the Attorney-General."

4. Had the Attorney-General's instruction been followed, the appellant would have been charged only with the first offence of theft (which did not rest merely upon his uncorroborated confession) and would have been invited to ask the court to take into consideration the 2nd, 3rd, 4th and 5th charges. Had this been done, as it should have been done, he would have received a much lighter sentence than the total of 25 months which in fact he received. Accordingly, I allow the appeal against sentence and substitute for the consecutive sentences of 5 months' imprisonment on each charge, consecutive sentences of 2 months' imprisonment thereon.

Representation:

Appellant in person

Duckett .C.C. for Crown.