Wong Tai Choi v. The Queen
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CACC000831/1972 IN THE SUPREME COURT OF HONG KONG (APPELLATE JURISDICTION) CRIMINAL APPEAL NO. 831 OF 1972 -----------------
Coram: Briggs, C.J. & Pickering, J. Date of Judgment: 24th July, 1973. ----------------- JUDGMENT ----------------- Briggs, C.J.: 1. On November 20th, 1972, this appellant pleaded guilty to the offence of being in possession of dangerous drugs for the purpose of trafficking. On November 22nd he was sentenced to 10 years' imprisonment. 2. Together with other persons he was found in possession of a large quantity of drugs on a junk of which he was the owner. 3. The junk was seized and placed in the custody of the Marine Department in the North Rambler Channel Typhoon Shelter on June 28th, 1972. At that time, it is said, that the junk was worth $1,050. 4. At the trial the Crown did not ask for an order for the confiscation of the junk. And the trial judge specifically made no such order. It appears from the record that it was then thought that no order to return the junk to the family of the appellant was necessary. And no such order was made. 5. The appellant appealed against his sentence and the appeal first came before the Full Court on May 14th, 1973. The Court decided to defer the hearing of the appeal until it received a report on the junk so a request was made to the Crown for a report as to its whereabouts and condition. 6. After repeated requests from the court, a report was received from the Marine Department on July 23rd, 1973. No explanation of this delay has been forthcoming. The appeal was relisted and heard on July 24th, 1973. 7. The junk was used by the appellant and his family to earn their livelihood and in some sense it may be said to have been their home. Its condition is, therefore, of great importance when dealing with the sentence of the appellant. For if it has been destroyed or allowed to disintegrate by the authorities in whose custody it was placed, an extra penalty will have been suffered by the appellant in addition to his sentence of imprisonment. 8. Counsel for the Crown told me that the junk was in a very bad condition when it was berthed in the Typhoon Shelter in June 1972. In July the main and auxiliary engines were stolen. And by January 1973 the junk had sunk in the Shelter. It remained under water for six months. Later, during a typhoon in July 1973 it was blown into shallow waters and what remains of the junk now lies on the beach. It is unseaworthy and valueless. 9. We think that this discloses a lamentable state of affairs. The junk has been allowed to disintegrate and no proper custody has been exercised over it at all. If property is placed in the custody of a Government Department it is the duty of that Department to look after it properly or to return it to its owner. 10. We think that it was perhaps unfortunate that no order was made by the court to return the junk to the family of the appellant. We hope that in all future cases of this nature that the court will be asked to make such an order. This will mean that there will be a positive duty, an order of the Court, to return the junk. 11. In the circumstances we allow this appeal to the extent that the sentence of ten years is reduced to seven years. We recommend that the Marine Department do pay the sum of $1050 to the appellant as compensation for the loss of the junk.
Representation: Appellant in person. Moshinsky, C.C. for Respondent. |