Yu Keung v. The Queen
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CACC000627/1975 IN THE SUPREME COURT OF HONG KONG (APPELLATE JURISDICTION) CRIMINAL APPEAL NO. 627 OF 1975 -----------------
----------------- Coram : McMullin J. in Court. Date of Judgment: 21 August 1975 ----------------- JUDGMENT ----------------- 1. The appellant was charged before the District Court upon charges of blackmail and wounding. 2. Those offences, with which I am not now directly concerned, were said to have taken place respectively on the 17th of February and the 19th of February the victim, TSO Chi-keung, being the same in each case. On the file placed before the court in the present appeal appears a charge sheet in which the offence with which I am concerned i.e. possession of an offensive weapon is seen conjoined with the charges of blackmail and wounding and this charge sheet is dated the 7th of April 1975. Trial in the District Court took place in June but for some reason which is not clear to me only the blackmail and wounding charges were dealt with by the District Judge. The appellant was convicted upon the wounding charge but he was acquitted of blackmail. He was then returned for trial to the magistrate's court in relation to the offence of possession of an offensive weapon and on the 16th of July sentence of fifteen months was imposed upon the conviction of possession of an offensive weapon the sentence to run consecutive to the sentence imposed in the District Court. 3. There is no doubt that the offence with which I am now concerned was committed a considerable time after the previous two offences, the date in the charge being the 5th of April 1975. I am however informed by the appellant, and I see no reason to disbelieve him, nor does the Crown demur to this information, that the offensive weapon, the subject of the present charge, was in fact the weapon that he had used to stab the victim upon the wounding charge in February. Had these three charges been tried together in the District. Court it seems to me quite possible that the District Judge would not have imposed a consecutive sentence in respect of the possession charge although of course it would have been open to him to do so. It has not been explained why, in fact, the possession of offensive weapon charge was not pursued before the District Court but before a magistrate after the other two offences with which it had originally been conjoined had been disposed of by the District Court. 4. Another matter to be mentioned is that in coming to his conclusion the magistrate in the present case referred to the sentence of three and a half years imposed in the District Court but did so in a way which seems to indicate that he believed that the defendant had been convicted of both the charges before the District Court. It may well be that if he had been aware that the appellant had in fact been acquitted of the blackmail charge and convicted only of the wounding charge, that he would have taken a different view of the necessity for cumulative sentences. The only point the appellant makes from the present appeal is that he thinks that the sentence imposed by the magistrate should have been made to run concurrently with the sentence he was then referring. 5. In all the circumstances I think that there is substance in the sole point of appeal and the sentence imposed by the magistrate will be varied to the extent that it is ordered that a sentence of fifteen months' imprisonment imposed by the magistrate is to run concurrently with the sentence imposed in the District Court upon the wounding charge.
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