Chan So Har v. The Queen

CACC000720/1971

IN THE SUPREME COURT OF HONG KONG

(APPELLATE JURISDICTION)

CRIMINAL APPEAL NO. 720 OF 1971

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Coram: Pickering, J.

Date of Judgment: 29th November, 1971.

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JUDGMENT

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1. The appellant pleaded guilty to the offence of going equipped for stealing contrary to s.27 of the Theft Ordinance, Cap. 210. His arrest followed the familiar pattern of attempted breaking into private cars and the item with which he was equipped for that purpose was a wire hook.

2. The appellant admitted seventeen previous convictions, some eleven of which were in respect of offences involving dishonesty.

3. The learned magistrate sentenced him to 9 months imprisonment and in his Statement of Findings observes that he does not normally impose a sentence of more than six months for this particular offence: however the number and nature of the appellant's previous offences caused the magistrate to consider a sentence of nine months imprisonment appropriate.

4. The appellant appeals against the sentence on the ground that it was too severe and I am constrained to agree. In the case of WONG Wai-hung v. Reg.⁽¹⁾ it was held by the Full Court that although an accused person's record should be taken into consideration as showing the kind of man he is and the probable effect upon him of the punishment proposed, he should not be sentenced again for crimes for which he has already been punished. In LI Lam v. Reg.⁽²⁾, the Full Court, following LUI Shu-tong v. Reg.⁽³⁾, said the court should not sentence an accused "for" his past record. It is however legitimate to take that record into account for the purpose of ascertaining the type of individual before the court and to use that information for the purpose of determining the appropriate sentence to be imposed.

5. In the present case, the learned magistrate increased the sentence which he would otherwise have imposed by as much as fifty percent purely on the basis of the accused's past record. Whilst the inflation of a relatively lengthy sentence by a period of three months might well be justified in the case of an accused with a record such as that of the appellant, when his present sentence is viewed percentage-wise, it is seen that he has suffered an addition of fifty percent to his sentence merely because of past offences already dealt with.

6. As it seems to me this appellant was, in part, sentenced "for" his past record; I set aside the sentence of nine months imprisonment and substitute for it a sentence of seven months imprisonment which sentence, whilst not ignoring his record and the type of individual he is, is less inflationary in relation to the typical sentence of six months imprisonment for this offence, than was the learned magistrate's nine months.

Representation:

Appellant in person

Caird C.C. for Crown

(1) 1965 H.K.L.R. 629

(2) 1961 H.K.L.R. 404

(3) 1961 H.K.L.R. 129