Chan Cheuk and Another v. The Queen

CACC000689/1972

IN THE SUPREME COURT OF HONG KONG

APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 689 OF 1972

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Coram: Rigby, C.J.

Date of Judgment: 31st October, 1972.

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JUDGMENT

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1. The two appellants, both of whom are aged 23, pleaded guilty to a charge of burglary, the particulars of that charge being that they entered premises as trespassers and stole the sum of 5,000 and a wristwatch.

2. The facts of the case are of some interest. It appears that on the 21st August a police party went to an apartment house in Kowloon as a result of information they had received. On entering a room in the apartment house they found the two appellants inside; it was noticed that the first appellant had a new set of Parker fountain-pens. Both the appellants were questioned and as a result of interrogation they admitted that some three days previously they had entered the premises referred to in the particulars of the charge, and that from a drawer in a room in those premises they had taken the sum of $5,000 and a wristwatch. The set of pens found in the possession of the first appellant was part of the proceeds of the money which had been stolen.

3. The second appellant had in fact been employed by the person whose property had been stolen and it was in the course of his employment that he had been able to obtain a key to the premises and have a duplicate key made. It would seem clear beyond doubt that he was the ring leader of this unlawful venture.

4. The first appellant was sentenced to twelve months' imprisonment, the second appellant to fifteen months' imprisonment. Before sentencing them the learned magistrate had before him reports from a Probation Officer. It is clear that both appellants have never been in trouble before in the sense that they have no previous convictions. However, the Probation Officer's reports in respect of both of them were extremely critical as to their way of life. In so far as the first appellant is concerned, according to the Probation Officer's report he was a member of a Triad Society; he was a gambler; and he had also visited opium divans. His report in respect of the second appellant was not much better. He described him as a gambler and, indeed, mentioned that the appellant had at one time admitted that he had robbed someone else.

5. The learned magistrate was clearly impressed by these Probation Officer's reports. Indeed, in his Statement of Findings in regard to the first appellant he said:

"I considered then that a prison sentence was the appropriate penalty. In view of his manner of life it did not seem to me that I should suspend his sentence."

6. In regard to the second appellant he refers to the fact that the second appellant, according to the Probation Officer's report, was a member of a Triad Society, that he spent lavishly at gambling stalls and ballrooms and he makes reference as well to the fact that the second appellant had apparently admitted to the Probation Officer that he had committed an earlier robbery.

7. It must be at least open to argument as to how far a magistrate is entitled to act upon an extremely adverse Probation Officer's report without first giving the offender an opportunity to know the contents of that report and, secondly, giving him an opportunity to refute the allegations contained in that report. Be that as it may, as I have said, it is quite clear that in this case the learned magistrate was influenced, and in my view, too much influenced, by the contents of those reports.

8. It is clear that the appellants were first offenders. It is further a matter for comment that the offences had never even been reported to the police by the victim whose property had been stolen.

9. In the circumstances of this case I am of the opinion that the peremptory terms of imprisonment imposed were too severe. The sentence will, therefore, be varied in so far as the first appellant is concerned to one of six months' imprisonment, such sentence to be suspended for a period of two years, and in so far as the second appellant is concerned, since he clearly was the ring leader his sentence will be varied to one of nine months' imprisonment, such sentence also suspended for a period of two years.

Representation: