Ho Kam-shui v. The Queen
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CACC001130/1974 IN THE SUPREME COURT OF HONG KONG (APPELLATE JURISDICTION) CRIMINAL APPEAL NO. 1130 OF 1974 -----------------
----------------- Coram: Cons, J. Date of Judgment: 7 January 1975 ----------------- JUDGMENT ----------------- 1. The appellant pleaded guilty to robbing a young girl in a lift at the Sau Mau Ping Estate on the 20th November 1974. He appeals against the sentence imposed of two years' imprisonment. There is nothing particular in the way of mitigation. The appellant is twenty-eight years of age and I see no reason to interfere with that sentence. 2. Earlier this year, on the 23rd May, the appellant had pleaded guilty, together with another man, to stealing a quantity of bricks from a construction site. The two had been arrested in the small hours of the morning taking away their booty in a wooden cart. The other man was sentenced to one month's imprisonment. The appellant was given a conditional discharge and bound over in the sum of $250 to be of good behaviour and to appear for sentence if called upon. This matter was brought to the attention of the learned magistrate when dealing with the later robbery charge, who then dealt with it by discharging the bond and imposing a further term of six months' imprisonment. In doing so he took into account the fact that the appellant had rejected the chance offered to him on the earlier occasion. 3. With respect to the learned magistrate the action he took does not accord with the decision of the Full Court in Tsoi Ching Chuen v. Reg. (Cr. App. 346 of 1971) a case not included in the Law Reports, but which is mentioned in Vol. II of Addison's Criminal Digest, para. 747. There it was said that the general practice should be to the forfeit the recognizance and to deal with the original offence having regard only to such circumstances as existed at the date the recognizance was taken. It is not an absolute rule. The court is free in its discretion to adopt some other course, but if so it should give its reasons. 4. I therefore propose to allow the present appeal to the extent of setting aside the further sentence of six months and to substitute in its stead a term of one month consecutive. The recognizance signed by the appellant in May, 1974 is estreated to its full extent of $250. He says that he has neither money nor any asset which could be distrained upon. In the default therefor of payment I immediately impose a further term of two months' imprisonement consecutive to all others. Representation: T.J.R. Carolan, Sr. Crown Counsel, for the Respondent. Appellant in person. |