Chin Wing v. The Queen

CACC000749/1974

IN THE SUPREME COURT OF HONG KONG

(APPELLATE JURISDICTION)

CRIMINAL APPEAL NO. 749 OF 1974

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Coram: Pickering, J.

Date of Judgment: 25th September, 1974.

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JUDGMENT

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1. The appellant was convicted of being a suspected person found loitering contrary to s.26(c) of the Summary Offences Ordinance (Cap. 228) and was sentenced to nine months' imprisonment. The maximum sentence which can be imposed under that section is three months.

2. The learned magistrate realised his error and in his Reasons for Sentence expresses his dismay. He can at least be assured that he is not alone. This is by no means the first time that a maximum sentence, either under the Summary Offences Ordinance or otherwise, has been overlooked and I reduce the inevitable result of this appeal to writing merely as a reminder of the need for vigilance. In the present case no harm has been done because the appeal was heard within a matter of weeks of the conviction. Instances may arise, however, where there is no appeal. An old lag, not unaccustomed to fairly lengthy terms of imprisonment may, upon receiving a sentence of six or nine months, heave a sigh of relief and refrain from appeal although in fact the sentence is greater than the maximum permitted by law. In such a case he would not only be, but remain, the victim of an unwitting injustice.

3. In the present case the appellant's record was such that I consider that he richly deserved the maximum sentence permitted by law and I set aside the sentence of nine months' imprisonment and substituted for it a sentence of three months.

Representation:

Appellant in person

Corrigan, C.C., for respondent.