Chau Kam Ming v. The Queen
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CACC000718A/1968 IN THE SUPREME COURT OF HONG KONG APPELLATE JURISDICTION CRIMINAL APPEAL NO. 718 OF 1968 -----------------
----------------- Coram: Hogan, C.J. & Blair-Kerr, J. Date of Judgment: 29 March 1969 ----------------- JUDGMENT ----------------- Blair-Kerr J.: 1. I agree; and I would only add a few words on two points. Firstly, it is the Attorney General who decides what charges shall be dealt with by the District Court. If the District Judge feels that a charge should not have been transferred to his court because the offence involved merits a sentence of imprisonment in excess of five years, his duty is to impose a sentence of five years' imprisonment. It seems to me that in such circumstances it would be wrong for the District Judge to accede to a request that he should take other offences "into consideration" if in his view his powers of punishment are insufficient to enable him to do justice in the case of the one charge which is before him. 2. Secondly, it is generally recognised that true contriteness of heart on the part of the accused is a factor to be taken into consideration by the trial court in assessing sentence. The question, however, arises as to the circumstances in which a court may presume that an accused person is truly repentant. I do not think it follows that pleading guilty in court necessarily indicates that the accused is truly repentant. His attitude to the prosecution may well be simply that it is "a fair cop" (to use the language of the underworld). He may not regret his misdeeds at all. Nor do I think that a court should in all cases conclude that an accused person is repentant simply because he has confessed to the police. If he surrenders himself and, without pressure of any kind, confesses his wrong doing and later pleads guilty in court, this may well be a factor in his favour. But if he is already in custody in respect of one offence and he is questioned in regard to other offences alleged to have been committed by him it seems to me that no court should presume as a matter of course that any confessions made by him are indicative of contrition. The circumstances surrounding such police questioning, if any, are seldom, if ever, investigated by the court if the accused pleads guilty. 3. In my view, it should be left to the trial judge or magistrate to assess to what extent, if any, an accused person is truly repentant; and I should have thought that the most important factor in this regard would be the accused's attitude when pleading in mitigation. 29th March, 1969. IN THE SUPREME COURT OF HONG KONG (APPELLATE JURISDICTION) CRIMINAL APPEAL NO. 718 OF 1968 -----------------
Coram: Hogan, C.J. and Blair-Kerr, J. Date of Judgment: 29 March 1969 ----------------- JUDGMENT ----------------- Hogan, C.J.: 4. The appellant has been convicted on his pleas of guilty to two offences of obtaining money by false pretences contrary to section 50(1) (a) of the Larceny Ordinance, Cap. 210, and was sentenced to five years' imprisonment on each. The appellant falsely pretended to certain individuals responsible for building work that he was an inspector of the P.W.D., and, claiming that the works were contrary to requirements, obtained sums of $200 and $500 respectively in order to keep quiet. He had committed similar offences on many previous occasions. 5. The trial judge took into account these previous convictions and sentences, which showed that since the time when he retired from the Water Works Department in 1947, he had turned to a life of crime and was in prison throughout the greater part of the intervening period. 6. In support of his application for leave to appeal, the appellant advanced an argument that he had never had a chance, having been in prison for many years and that as his first wife had died at an early stage there was no one to encourage him to turn over a new leaf and lead a good life. He said that since his last emergence from jail he had married again and his wife is now pregnant. 7. Counsel for the Crown, moreover, directed our attention to the observations of the Full Court in Chan Sik Wan v. The Queen(1) and suggested that these might afford a further ground in support of the appellant's application. 8. In that case the accused had been charged with 4 offences, one of robbery with aggravation and three of larceny from the person, two of which had come to the knowledge of the police only because the accused had volunteered information about them and had produced the handbags to which they related, the victims having made no report. In the course of its ...(illegible), the Full Court said:-
9. Crown Counsel's argument on this, if I understood it rightly, was that, since the second charge in the present case had come to light only as a result of the statement made by the appellant, if the advice of the Full Court in Chan Sik Wan's case(1) had been followed, there would only have been one charge before the trial judge who would then, presumably, have been asked to take into account, when imposing sentence on that first charge, the second offence, but in so doing would not be able to give a greater punishment for the first offence than 5 years, as that is the limit of his jurisdiction; that, consequently, the sentence for the first offence standing alone would, in those circumstances, have had to be something less, in order to leave room for the amount added because of the second offence taken into account; and, accordingly, in the present case, the first offence should have received a smaller penalty than five years. Whether the second offence should have received a higher sentence or one equal to, and concurrent with, that imposed on the first would apparently still have remained for consideration. 10. Counsel also suggested that, as the individuals concerned in the present case were themselves guilty participants in the transaction, the court was not really engaged in imposing a deterrent to protect innocent members of the public, who had been deceived by the appellant, but a deterrent to protect culpable members of the public from entering on corrupt transactions and, moreover, that the offences were, in reality, cases of corruption which, under the relevant legislation, were punishable with only five years' imprisonment. 11. However, having put these points, Crown Counsel went on to support the sentences, on the ground that the offences to which the accused had pleaded guilty were serious offences, and there was really nothing to show that the penalties imposed were excessive in the sense which would justify intervention by a court of appeal. 12. I do not read the observations of the Full Court in Chan Sik Wan's case(1) as laying down a rule or any principle of law and it is questionable whether they were ever intended to apply to the type or kind of offence where the participants are all culpable and the incident is unlikely to be reported to the authorities or discovered other than through inquiries instituted by them. The court does not say precisely why it was thought that the better course would be not to charge the offences but let them merely be taken into account. Presumably, the intention was to recognize the element of contrition revealed by volunteering the information in question, although it is not readily apparent why this element should not be equally recognized in dealing with charges when the court could, if it thought fit, make any sentence concurrent. 13. Although I have little doubt that, since the point did not arise in the case before them, it was not the intention of the judges to suggest that offences much more serious or dissimilar in character, should be taken into account there may be some danger that the passage, which appears to be directed to a horizon wider than that of the case under consideration, could be read as embracing too wide a range of offences, as it makes no ...(illegible) reference to the limitation - recognized at any rate in England - on the type and kind of offence that ...(illegible) be taken into account. Archbold (36th Ed. para.615) says:-
14. Moreover, there is, in Hong Kong, a disadvantage that would not tend to arise in England, where, I understand, the criminal records kept and presented to the courts indicate whether, when imposing a sentence, other offences have or have not been taken into account. That is not the practice in Hong Kong. Consequently, if it becomes necessary at a subsequent date to look at the records of an accused who has had other offences taken into account all that may appear is an unusually high sentence for a particular offence, which may lead a court subsequently to think that he has been unduly harshly treated on a previous occasion or otherwise to misunderstand the significance of the entry. 15. The advice would also seem to imply some lack of confidence in the ability of trial courts to arrive at a proper sentence. Whilst I entirely agree that due account should be taken of the mitigating factor that the accused has himself volunteered the information which brought the offence to light and due weight should be given to that element, this can be done just as readily when the volunteered offence is made the subject of an additional charge. So far as the courts are concerned, the only effect of not making such an offence the subject of a charge but leaving it for the accused, if he so wishes, to request that it be taken into account is that this could restrict the power of the court to determine a proper sentence; particularly if there are a large number of offences to be considered, which might well carry the appropriate sentence outside the ceiling applicable to the offence or offences charged. 16. It might also be questioned whether, if a man has volunteered information about an offence, any distinction of this kind should be drawn between those cases where that is the first intimation of the offence received by the police force and cases where the police have received a report of the offence, unknown to the accused. The element of contrition may be no less present in the one than in the other. 17. A further question may arise because of the procedure to which Huggins, J. drew attention in the case of Tam Biu and Another v. The Queen(2) where he said that it was not for the prosecution to ask the court to take other offences into account and that this was a matter entirely for the accused. If an accused should change his mind after telling the prosecution that he wanted offences to be taken into account, the prosecution may be faced with the problem of bringing forward at a later date charges which could and should have been dealt with when the accused was previously before the court. 18. These are considerations which would seem to militate against seeking to establish any hard and fast rule in this matter and, as already indicated, I do not think that was the intention of the judges in Chan Sik Wan's case(1). I am not aware of any such rule in England although it may be usual not to charge such offences but to leave them to be taken into account and that this does lead to a greater number of confessions, since culprits may be more ready to volunteer admissions of guilt if they think that the offence will merely be taken into account and not made the subject of a separate charge. Consequently, such a course may have advantages in more frequently uncovering such culpability but this would seem to be a matter primarily for the discretion of the prosecuting authorities. It does not appear that the courts in England have sought to limit that discretion and, as at present advised, I would not seek to take a different course in Hong Kong though I would welcome a change in the method of keeping criminal records so that when other offences are taken into account, some intimation of that is included in the record. 19. Subsequent to the conclusion of the argument in this matter, my attention has been drawn to the case of Chan King Wah v. The Queen(3) where, on appeal, the judge replaced four consecutive sentences of 9 months each, on three counts of robbery with aggravation and one count of larceny, by two consecutive sentences of 9 months each and two concurrent sentences of the same period, giving as his sole reason for doing so the observations made in the Chan Sik Wan(1) case and without expressing any other reason for interfering with the sentences. This would appear to go beyond anything said by the judges in the Chan Sik Wan(1) case. Apart from any question whether sentences which were not, in themselves, thought to be excessive or erroneous should be altered, I would not see anything in the judgment of the Chan Sik Wan(1) case to suggest a rule that where an accused volunteers information about an offence not previously known to the police, he should receive no punishment in respect of that offence. 20. Neither the arguments addressed to us by the appellant or on behalf of the Crown make me think that we should intervene in the present case and I would refuse the application for leave to appeal. Representation: Appellant in person. F. Addison, senior crown counsel, for the respondent. Judgment read (1) Criminal Appeal No. 643/68. (2) 1965 H.K.L.R. 191. (3) Criminal Appeal No. 765/68 IN THE SUPREME COURT OF HONG KONG APPELLATE JURISDICTION CRIMINAL APPEAL NO. 718 OF 1968 -----------------
----------------- Coram: Hogan, C.J. & Blair-Kerr, J. Date of Judgment: 29 March 1969 ----------------- JUDGMENT ----------------- Blair-Kerr J.: 21. I agree; and I would only add a few words on two points. Firstly, it is the Attorney General who decides what charges shall be dealt with by the District Court. If the District Judge feels that a charge should not have been transferred to his court because the offence involved merits a sentence of imprisonment in excess of five years, his duty is to impose a sentence of five years' imprisonment. It seems to me that in such circumstances it would be wrong for the District Judge to accede to a request that he should take other offences "into consideration" if in his view his powers of punishment are insufficient to enable him to do justice in the case of the one charge which is before him. 22. Secondly, it is generally recognised that true contriteness of heart on the part of the accused is a factor to be taken into consideration by the trial court in assessing sentence. The question, however, arises as to the circumstances in which a court may presume that an accused person is truly repentant. I do not think it follows that pleading guilty in court necessarily indicates that the accused is truly repentant. His attitude to the prosecution may well be simply that it is "a fair cop" (to use the language of the underworld). He may not regret his misdeeds at all. Nor do I think that a court should in all cases conclude that an accused person is repentant simply because he has confessed to the police. If he surrenders himself and, without pressure of any kind, confesses his wrong doing and later pleads guilty in court, this may well be a factor in his favour. But if he is already in custody in respect of one offence and he is questioned in regard to other offences alleged to have been committed by him it seems to me that no court should presume as a matter of course that any confessions made by him are indicative of contrition. The circumstances surrounding such police questioning, if any, are seldom, if ever, investigated by the court if the accused pleads guilty. 23. In my view, it should be left to the trial judge or magistrate to assess to what extent, if any, an accused person is truly repentant; and I should have thought that the most important factor in this regard would be the accused's attitude when pleading in mitigation. 29th March, 1969. |