Ko Piu v. The Queen
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CACC000610/1968 IN THE SUPREME COURT OF HONG KONG (Appellate Jurisdiction) CRIMINAL APPEAL NO. 610 OF 1968 (Central Magistracy Case No. 1033 and 1034 of 1968) -----------------
----------------- Coram: Rigby, S.P.J. Date of Judgment: 15 November 1968 ----------------- JUDGMENT ----------------- 1. The appellant, aged 34, together with a young man, aged 18, who has not appealed against his sentence, was convicted on six charges of demanding money with menaces and simple larceny. He was also convicted upon a separate charge - heard by the learned magistrate immediately following upon his conviction on the first charge - of professing to be an office bearer of an unlawful society. Upon the first charge -involving the six charges of demanding money with menaces and simple larceny - he was sentenced to a total of 12 months' imprisonment. Upon the second charge he was sentenced to 8 months' imprisonment, such sentence to be consecutive upon the previous sentence of 12 months' imprisonment making a total of 20 months' imprisonment. He now appeals against those sentences. I should add that in the second case he was also ordered to be subject to a period of 2 years police supervision to commence as from the expiration of the sentences of imprisonment. 2. The facts relating to the first case may be briefly dealt with. It would appear that the appellant and the young man who was with him accosted two youths, aged 15 and 13 years old respectively, in the vicinity of the Southern Playground on Hong Kong Island and ordered them to come along with them to the playground. There they demanded money from them, under threats of assault in default of such payment, and as a consequence each boy was compelled to disgorge the sum of $1.30 and $2.50 respectively. 3. It is a little difficult to appreciate why it was considered necessary to charge the two accused persons with the two separate charges of demanding money with menaces and simple larceny upon four counts relating to what, in effect, was virtually one and the same transaction. One might have thought that putting threats as a result of which the money was obtained was simply an aggravation of the larceny and that, as such, the single count of larceny would have been sufficient. However, upon all those four counts the appellant was sentenced to four months' imprisonment on each count, the first two counts in relation to the first complainant to run concurrently, and the next two counts in relation to the second complainant to run concurrently with one another but consecutive to the sentence of four months' imprisonment on the first two counts. Here again, in my view it seems somewhat difficult to appreciate why it was considered necessary that there should be consecutive sentences in respect of what, in effect, was one and the same transaction involving, it is true, two complainants. 4. As regards the fifth and sixth counts, it would appear that at a later stage the two accused persons again met the first complainant and, by a similar process, compelled him to disgorge the sum of $12. Here again, I would make the same comment that one might reasonably have thought that the one charge of larceny would be sufficient without coupling with it the further charge of demanding money with menaces. It might be said that the matter is really only one of academic interest since there was only one sentence imposed to run concurrently in respect of the two charges. I do not think, however, that that is an appropriate way of looking at the matter since it must be apparent that if either of the two accused persons came up before the court at some later date, instead of there being the one charge of simple larceny in respect of each of the transactions, the court would be presented with what, on the face of the record of previous convictions, would be separate and distinct convictions of larceny and demanding money with menaces. It would not be apparent from the record of previous convictions that those previous convictions were, in fact, in respect of the same identical transactions. The overall effect would be to swell the record of previous convictions of the offender and, no doubt, as a consequence, render him liable to a heavier sentence taking into consideration that past record. The undesirability of preferring separate and distinct charges for practically the same offence is emphasized in the case of Francis Kenny(1) - although, it is true, that the facts in that case are readily distinguishable from the facts in the present case. 5. The learned magistrate, as I have said, imposed sentences of 4 months' imprisonment in respect of the two charges in relation to the first complainant to run concurrently, and four months' imprisonment in respect of the two charges in relation to the second complainant, to run concurrently with each other but consecutive upon the charges in relation to the first complainant. As I have indicated, in my view, this was virtually one and the same offence committed - it is true - in respect of the two complainants. I am of the opinion that in the circumstances the sentences of four months' imprisonment should run concurrently. 6. As regards the sentences on the fifth and sixth counts it would seem to me entirely proper that these sentences should run concurrently, but consecutive upon the four months' imprisonment on counts A, B, C and D, making a total in respect of these six counts of 8 months' imprisonment. The appeal will, therefore, be allowed to the extent that the overall sentences of 12 months' imprisonment will be reduced to 8 months' imprisonment. 7. As regards the sentence of 8 months' imprisonment upon the charge of professing to be an office bearer of an unlawful society, it is apparent that the appellant has two previous convictions in respect of that same type of offence. In those circumstances, there can be no ground for saying that the sentence of 8 months' imprisonment in respect of this particular offence was in any way excessive. The appellant undoubtedly has a criminal record and I am of the opinion that the order for 2 years police supervision should stand. 8. The appeal will accordingly be allowed to the extent which I have indicated, namely, that the aggregate sentence of 12 months' imprisonment on counts A to F will be reduced to 8 months' imprisonment; the sentence of 8 months' imprisonment on the second and distinct charge under the Societies Ordinance to remain in effect and to run consecutively upon the cumulative sentence of 8 months' imprisonment on the first charge. Representation: Appellant in person. Winter, C.C. for Crown/Respondent. (Judgment delivered) (1) 21 Cr. - App. R. p.78 |