Tang Wing Sang and Others v. The Queen
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CACC000715/1968 IN THE SUPREME COURT OF HONG KONG APPELLATE JURISDICTION CRIMINAL APPEAL NO.715 OF 1968 -----------------
Coram: Huggins, J. Date of Judgment: 13 December 1968 ----------------- JUDGMENT ----------------- Huggins,J: 1. The first three appellants were charged with two offences of factory breaking and the 4th appellant with two related offences of receiving stolen property, namely human hair, knowing the same to have been stolen. They pleaded guilty. The thieves were sentenced to one year's and two years' imprisonment concurrent and the receiver to nine months and nine months' imprisonment concurrent. They appeal against these sentences. 2. Counsel for the 4th appellant conceded at the outset that the sentences imposed on his client were not manifestly excessive but he relied upon the decision in Sum Kim-wah v. Reg.(1) and invited me to take a more lenient view of the circumstances than did the learned magistrate. However and, I presume, in the alternative he submitted that the learned magistrate was in error in attaching undue weight to the profit which it was suggested the 4th appellant had made. If there was such an error then the case cited would have no relevance. I will therefore consider first whether there was an error as alleged. 3. In support of his contention counsel obtained leave to call evidence on the appeal. The object of this evidence was to establish that only part of the goods received was sold and that such part constituted the more valuable part. That the learned magistrate said was:
(The figure of 273 1bs. was in fact the quantity recovered: the total admitted at the trial to have been received was 304 1bs., although at the end of the argument counsel for the 4th appellant told me he was instructed that only 220 1bs. were bought by his client). The evidence of Mr. Wong Sze-kam was that he bought 48 1bs. of hair from the 4th appellant out of a total of about 248 1bs. shown to him, that the 48 1bs. included the best of the hair and that what remained was "worth nothing", which he went on to explain as meaning worth one third (or a little less) of the better quality hair. He affirmed that he would know the difference between 100 1bs. and 200 1bs. of hair. It was then elicited that the witness bought the goods on 7th September, which was two days before the second theft and by which date the 4th appellant had received only 140 1bs. of this stolen hair. When it was pointed out to him that on his evidence some of the goods shown to him on the day of his purchase could not have been goods covered by the first charge he admitted that he could not be sure of his estimate of the quantity of hair shown to him. I can attach little weight to this evidence adduced before me and I am not persuaded that the learned magistrate was in error, although it must, I think, be conceded that his calculation was based on an assumption which may not have been justified since there was no evidence before him that the goods were of uniform quality. The amount of the profit was of only minor importance and I do not think it has been shown that any error there may have been would materially have affected the learned magistrate's decision. 4. That brings me to the next question, what is the function of this court when sitting on an appeal against a sentence imposed by a magistrate? With respect to the learned judge who decided Sum Kim-wah v. Reg.(1) I am unable to accept his reasoning. He based himself on a conclusion which he believed could be drawn from a consideration of reports of cases heard in the Court of Criminal Appeal in England, namely that the sole test to be applied by an appellate court in deciding whether or not to interfere with a sentence is not whether or not such a sentence is manifestly excessive or inadequate or obviously wrong in principle. For myself I am by no means persuaded that such a general conclusion can properly be drawn, but if it can I have no doubt at all that the cases relied upon were wrongly decided. The relevant provisions of the Criminal Appeal Act 1907 and our Criminal Procedure Ordinance are similar and the court, "if it thinks that a different sentence should have been passed", may substitute such lawful sentence "as it thinks ought to have been passed". As early as 1908 the Court of Criminal Appeal considered what was meant by those words and decided they meant that the appellate court must be persuaded the judge of the trial had proceeded upon wrong principles or given undue weight to some of the facts proved in evidence: "it was not possible to allow appeals because individual members of the court might have inflicted a different sentence, more or less severe": Sidlow(2). It is really no extension of that decision that, where a sentence has been so manifestly excessive that it could not have been passed by a judge acting on right principles, the courts have, without searching for the specific error, inferred that it was based upon wrong principle. As I understand it the view adopted in Sum Kim-wah v. Reg.(1) involved the interpretation of the statute as if it read: "if (the court) thinks that a different sentence might have been passed and that such different sentence is to be preferred". Even in the absence of authority I confess that I should have difficulty in adopting such a construction, but after half a century I am quite unable to agree that it can be right to adopt it now. The narrower construction has been adopted time without number in England and it has been adopted time without number in the courts of this Colony. I refer to only two English cases: R. v. Lambert(3) and R. v. Gumbs(4). In the former case Mr. Justice Sankey said at page 132:
I will content myself with referring to only three local cases. The matter was carefully considered by the Full Court in Nomura v. R.(5) and the court deliberately and clearly stated that it would follow the English cases which set out the principle to which I have referred. In 1963 the Full Court refused to interfere with a sentence although it was expressed to be higher than that which would have been passed by the individual members of the court: Kang Chik-tung v. Reg.(6). There have been more recent cases such as Lamke v. Reg.(7). The interpretation of a statute is a matter of law and not of the personal whim of a judge and I have never seen any attempt to establish that the construction of the Criminal Appeal Act 1907 adopted in 1908 was wrong. 5. In Sum Kim-wah v. Reg.(1) the learned judge appears to have assumed that the same principles applied to appeals from magistrates in Hong Kong as applied to appeals to the Court of Criminal Appeal in England and to the Full Court on appeal from the Supreme Court and the District Court in Hong Kong. That was the conclusion which had been reached the previous year by Mr. Justice Blair-Kerr in Lo Yim-kai v. Reg.(8) and Mr. Justice Wylie in Wong Hoi-to v. Reg.(9). In Lo Yim-kai v. Reg.(8) Mr. Justice Blair-Kerr, after relating the history of s.117(d) of our Magistrates Ordinance and considering the basis of the rule applied by the Court of Criminal Appeal, held that there was no good reason for applying a different rule to appeals to this court: they too were appeals decided upon a reading of the record, the appellate court not having the advantage of seeing and hearing the appellant and the witnesses. I respectfully agree with this conclusion. It is, moreover, consonant with the fact that in every case where an appeal lies on the ground of excessive severity matters of sentence are matters of discretion. Unless it can be said that the discretion has been wrongly exercised it can lead to nothing but uncertainty and the proliferation of unmeritorious appeals if the appellate court proceeds to substitute its own discretion for that of the magistrate in cases where the magistrate has not passed a sentence which is wrong in principle. 6. Even giving full weight to the age and background of the 4th appellant, to the fact that he has lost the money which he paid to the thieves and that he pleaded guilty I am satisfied that the sentences passed were not unreasonable. I do not say that a sent...(illegible) six months' imprisonment would not also have been reasonable but is irrelevant. The appeal of this appellant is dismissed. 7. The other appellants have advanced various matters in support of their appeals, principally in relation to their family circumstances. The 1st appellant and 3rd appellant are first offenders: the 2nd appellant has one previous conviction, for larceny. The learned magistrate was obviously impressed with the fact that these appellants embarked upon a serious of raids and were arrested as a result of the discovery of elaborate preparations for yet another breaking. The finding of three daggers with the housebreaking implements may well have deterred the learned magistrate from showing leniency. He remarked on the prevalence of this type of offence and I am unable to say that the sentences imposed were excessive. The appeals of these appellants also are dismissed. 13th December 1968. Representation: (1) 1967 H.K.L.R.140 (2) (1908) 1 Cr. App. R. 28, 29 (3) (1926) 19 Cr. App. 131 (4) (1926) 19 Cr. App. 74 (5) (1934) 27 H.K.L.R. 31 (6) 1963 H.K.L.R. 721 (7) 1965 H.K.L.R. 251 (8) 1966 H.K.L.R. 414 (9) 1967 H.K.L.R. 336 |