Cheng Ting Po v. The Queen

CACC000640/1977

IN THE SUPREME COURT OF HONG KONG

(APPELLATE JURISDICTION)

CRIMINAL APPEAL NO. 640 OF 1977

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Coram: Morley-John, J.

Date of Judgment: 7th July 1977.

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JUDGMENT

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1. The appellant pleaded guilty to a charge of theft contrary to Section 9 of the Theft Ordinance Cap. 210 and he was sentenced to six months' imprisonment. He also agreed that the entry in his Criminal Record Form to the effect that on the 10th August 1976 he was convicted of the offence of obtaining property by deception and was sentenced to three months' imprisonment suspended for 18 months was correct. Whereupon the learned magistrate ordered that the three months suspended sentence be activated in full and be served consecutively to the six months' sentence he had imposed.

2. The appellant has appealed against the sentence of six months on the grounds that it was too severe. In elaborating upon those grounds of appeal the appellant who appeared in person said that he thought it was unfair that the magistrate had activated the suspended sentence as he had not committed any offence since the suspended sentence had been imposed. Reference to the papers in this case revealed that although the appellant had pleaded guilty before the learned magistrate on the 9th June 1977 he had in fact committed the offence to which he so pleaded guilty on the 7th July 1976 that is before the suspended sentence of the 10th August 1976 had been imposed.

3. The appellant also contended that the learned magistrate thinking that he had committed the offence of theft after the suspended sentence had been passed imposed a heavier sentence than he otherwise would have done if he had realised that the case before him was concerned with a prior offence and not a subsequent offence as stated in the learned magistrate's Statement of Findings.

4. In his Statement of Findings the learned magistrate stated as follows:

"This was this man's second conviction for dishonesty in 9 months; I felt the time was appropriate to administer a shock - he had been given and thrown away one chance to redeem himself; he is 28 and as this offence was similar to the previous one I could see no reason why the original sentence should not be activated; this was a subsequent offence of a similar nature and I felt unable to impose a sentence of less than 6 months immediate imprisonment."

5. It is clear from this statement that the learned magistrate did not realise that the offence before him had been committed before the imposition of the suspended sentence. It is also clear that the learned magistrate took into account the subsequent conviction as the previous conviction and he actually believed that the appellant had been given and thrown away one chance to redeem himself and had consequently imposed a sentence of six months' imprisonment.

6. The appellant is very fortunate that his first offence did not come to light at an earlier date but under the circumstances the order that the sentence suspended for 3 months be activated must be quashed and the appeal is allowed to the extent that the sentence of six months imprisonment imposed be reduced to one of three months.

Representation:

Appellant in person.

D. Little for Crown/Respondent.