Wong Wai Ho v. The Queen
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CACC000799/1972 IN THE SUPREME COURT OF HONG KONG (APPELLATE JURISDICTION) CRIMINAL APPEAL NO. 799 OF 1972 -----------------
----------------- Coram: Rigby, C.J. Date of Judgment: 7th December, 1972. ----------------- JUDGMENT ----------------- 1. At 11.35 a.m. on the 23rd of October, the appellant was seen walking along Connaught Road, Central, carrying a folded magazine. He was so seen by a police patrol. He was stopped and inside the folded magazine was found a plastic toy pistol. He was asked why he had such a toy pistol in his possession and he gave a number of explanations which were subsequently found to be untrue. He finally admitted that he had stolen the pistol earlier that morning from a hawker selling toys. He took the police to the hawker's stall, and the hawker said that he had not sold such a toy pistol to the accused that morning. He was later charged before the magistrate, and he was sentenced to fifteen months' imprisonment. It is against that sentence that he now appeals. 2. The appellant, it is true, despite his relative youth of 24 years of age, has a number of previous convictions for offences of dishonesty. But in my view, the sentence in this case was manifestly excessive and wholly wrong in principle. Which one appreciates the observations made by the learned magistrate about the prevalence of offences where persons are deprived of their property by the production of a weapon or an imitation pistol, the fact remains that in this case the appellant quite clearly is being punished not for what he has done but for what the magistrate, upon sheer speculation and conjecture, considers that he might possibly intend to do some time in the future. There is, of course, no evidence whatsoever that the appellant at that stage was in possession of this toy pistol for any criminal purpose at all. He was stopped walking along the street carrying this pistol in the middle of the morning. 3. The appellant has now been serving his sentence since the 24th of October. That is a matter of some 2 1/2 months. The appeal will be allowed. The sentences will be varied to one which will enable him to be released and discharged forthwith. Representation: |