Chan Chi Kong v. The Queen

CACC000544/1969

IN THE SUPREME COURT OF HONG KONG

APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 544 OF 1969

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Coram: Rigby S.P.J.

Date of Judgment: 15 September 1969

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JUDGMENT

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1. The appellant, a young man aged 22, pleaded guilty to the charge preferred against him of simple larceny. He was sentenced to 18 months' imprisonment and he now appeals against that conviction,

2. He was earning $240 a month plus tips ranging from $60 to $100 a month.

3. The facts of the case may be briefly stated. Shortly after 6.30 a.m. the night manager of one of the leading hotels in Hong Kong heard the sound of breaking glass coming from the vicinity of the showcases on the mezzanine floor of the hotel. He went to investigate and found that one of the showcases had been broken. The matter was reported to the manager of the shop owning the showcase and it was found that four wrist-watches and one gold earring had been stolen therefrom. The matter was reported to the police.

4. At about mid-day that same day a party of police were making a check at a pawn-shop in King's Road, Hong Kong. Inside the shop they saw the appellant holding a watch in his hand. They noticed blood stains on the appellant's fingers. He was questioned about the watch in his possession. Thereupon he admitted that it was one of the watches he had stolen from the showcase at the Mandarin Hotel that same morning. He led the police to his residence and all the stolen property was there recovered. The value of the property stolen was given as $3,770.

5. At the material date the appellant was himself employed in the capacity of what was described as a "buzz boy" or bar boy. He was earning $240 a month plus tips ranging from $60 to $100 a month. In such spare time as he had, he also worked for his uncle, who managed a small business, collecting from clients debts due to the uncle. The previous afternoon, in his spare time, the appellant had collect monies from clients, due to his uncle, amounting to about $200. That evening, after finishing work at the hotel at about midnight, he went and played cards with some of his follow employees. He lost not only such money as he himself had, but also the $200 he had collected for his uncle. Anxious and panic stricken at the thought of having to account to his uncle for this money he conceived the idea of smashing the showcase and stealing and pawning the contents. Accordingly he wrapped a towel round his fist, broke the glass of the showcase and stole the four watches and the one earring.

6. The appellant now, I repeat, appeals against his sentence of 18 months' imprisonment. He is a young man aged 22 and he has a perfectly clear record, never having been in trouble before. I should, perhaps, state that subsequent to the sentence imposed upon him, the appellant applied to the magistrate for a review of the sentence but that application, after hearing, was dismissed and the sentenced confirmed. It is apparent from the "Statement of Findings" written by the magistrate, after this appeal against sentence had been lodged, that the learned magistrate gave careful and anxious consideration to the sentence before he imposed it. It is, of course, manifest that offences of this kind cannot be allowed to go unpunished. However even allowing for the offence committed, I am firmly of the view, particularly having regard to the fact that the appellant had never been in trouble before, that a sentence of 18 months' imprisonment upon this young man, aged 22, was manifestly excessive. The learned magistrate has referred to the fact that the offence was premeditated. With respect, I wonder whether that is a correct inference to be drawn from the facts. It would seem quite clear that the appellant, having lost not only his own money but his uncle's money, at cards, was in some state of panic as to the explanation that he would have to give to his uncle for not producing the money. It was in that state of panic that he made up his mind to steal the articles from the showcase and wrapped a towel round his hand for the purpose of breaking the window of the showcase.

7. It has repeatedly been said that perhaps the most difficult task of a judge or magistrate is to decide what sentence should be imposed upon an offender once the case against him has been proved. On the one hand, clearly one must have regard to the public interest and to the desirability, or necessity, of discouraging the commission of further offences of a like nature. On the other hand one must have regard to the circumstances of the offender. It is equally in the public interest that such a sentence should not be imposed upon a first offender that is likely to turn him against society and to tend to convert him into a habitual offender. When this appeal first came before me the appellant's uncle, who was present in court, said that he was prepared to look after the appellant and give him permanent employment in his own business. The appellant himself, as is unhappily frequent in many cases, comes from a broken family; he lives with his mother and younger brothers and sisters while his father is living with some other woman. The appellant himself has now been in prison for exactly three months, serving the sentence imposed upon him. It has frequently been said, by those with intimate knowledge of these matters, that the first six months of a prisoner's sentence is the worst, and that after that he becomes acclimatized to the conditions and restrictions imposed upon him. I adjourned this case in order that I might have a report from a Probation Officer. That report is now before me. Bearing in mind the appellant's relatively youthful age and the factors, first, that he has never been in trouble before and, secondly, that his uncle is now prepared to look after him and give him permanent employment, I do not consider that any useful purpose whatsoever would be served, either in the interest of the public or in the interest of the appellant himself, if he was detained any longer in prison. I would again reiterate the fact that he has now spent already three months in prison and has had ample opportunity to realise the error of his ways. I propose, therefore, to allow this appeal and to set aside the sentence of imprisonment and, in lieu thereof, under Section 3 of the Probation of Offenders Ordinance, I make a Probation Order requiring the appellant to be under the supervision of the Probation Officer for a period of two years.

Representation:

Ming Huang (Steven Lo & Co.,) for Appellant.

Penlington, P.C.C. for Crown/Respondent.