Chau Chi-man v. The Queen

CACC000722/1980

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

CRIMINAL APPEAL NO. 722 OF 1980.

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Coram: Bewley, J. in Court.

Date of Judgment: 23rd September, 1980.

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JUDGMENT

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1. The appellant pleaded guilty to one charge of going equipped for stealing, contrary to section 2 of the Theft Ordinance, Cap. 210 (charge B) and was sentenced to fifteen months imprisonment. He now appeals against sentence.

2. He was originally also charged with attempting to take a conveyance without authority (charge A). At the first hearing he pleaded guilty to both charges and the facts of the case were read out. The learned magistrate observed that the facts did not appear to support charge B - there was no mention of anything having been found on the appellant - and the case was adjourned for further enquiries.

3. At the resumed hearing charge A was dismissed, but a loitering charge was added. The appellant confirmed his plea of guilty to charge B, but denied the other.

4. When the case came on for trial, ten days later, the prosecution offered no evidence on the loitering charge. The facts on charge B were that, at about 12.40 a.m. on the 6th July, the appellant was seen standing beside the front door of a private car. He was arrested by D/Sgt. 12088, who found on him a key ring containing three car keys. The sergeant asked what he was doing and he said: "I only wanted to take the car for a joyride."

5. The appellant is 28 and he has three previous convictions, including two for robbery. His last conviction was for assault occasioning actual body harm, for which he received a suspended sentence of three months. The present offence took place during the period of suspension.

6. The learned magistrate called for a probation report, in order to obtain further information on the appellant's background. It is not encouraging.

7. In passing sentence - he also activated the suspended sentence - the magistrate said he did not readily accept that the appellant intended only a joyride. He also referred to the appellant's record as one of the reasons for the sentence.

8. There was no evidence that there was anything in the car worth stealing. It was not alleged or admitted that this was the appellant's intention. The laying of the original charge A tends to indicate the contrary. It seems, therefore, that the learned magistrate's reluctance to accept the appellant's declared intention of wanting to take the car for a joyride was not justified.

9. 'Joyriding' is, of course, 'stealing' for the purposes of section 27, and there is no doubt that the appellant was properly convicted, but it is a less serious crime than theft in the usual sense. This would be a ground in itself for a reduction of the sentence.

10. Counsel for the appellant submits that the learned magistrate paid undue regard to the appellant's record and failed to apply the tariff for the offence itself. She points out that, in the magistrate's court, the upper ceiling of the latter is in the region of six months and that for taking a vehicle is three months. This would appear to be roughly correct. See Wu Yat-cheung v. R⁽¹⁾ (Taking vehicle: twelve months reduced to three months); Chan Wan-lung v. R⁽²⁾ (Taking vehicle: four months reduced to two months); Wong Shu v. R⁽³⁾ (Going equipped: nine months reduced to six months); Yung Sai Wing v. R⁽⁴⁾ (Full Court) (Going equipped: six months reduced to three months); Kwok Yip Shing v. R⁽⁵⁾ (Full Court) (Going equipped: seven months reduced to six months).

11. The maximum sentence for an offence under section 27 is three years imprisonment. Obviously there will be more serious cases than this one, where a sentence greater than six months will be appropriate. But, significantly, counsel for the Crown does not seek to support this sentence.

12. This was not a bad case of going equipped for stealing. I think the magistrate was sentencing the appellant on his record and not for what he actually did. The sentence was, therefore, wrong in principle. Previous convictions merely disentitle a defendant to any sympathy from the court. They are not a ground for increasing the normal sentence for that offence. See Thomas' 'Principles of Sentencing' p. 174.

13. For these reasons I allow the appeal and reduce the sentence to four months imprisonment. I shall not interfere with the activation of the suspended sentence. The result is that the appellant will serve seven months instead of eighteen months.

Representation:

Miss Maria Yuen (DLA) for appellant.

Mr. Plowman, C.C., for respondent.

(1) Cr. App. 1107/75

(2) Cr. App. 694/76

(3) Cr. App. 407/71

(4) Cr. App. 422/74

(5) Cr. App. 431/74