Wong Lee v. The Queen

No.343 of 1993
(Criminal)

IN THE COURT OF APPEAL

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BETWEEN

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Coram : Hon Penlington, J.A., Liu & Wong, J.J. in Court

Date of hearing : 2nd November 1993

Date of delivery of judgment : 2nd November 1993

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J U D G M E N T

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Liu, J.;

1. On the 24th March 1993 the applicant approached a woman in the Reclamation Street market, Yaumati and snatched her purse. He fled but was chased by a public-spirited by-stander and an off-duty police officer. He was caught and arrested. In the course of the pursuit he dropped the purse in which the woman carried $2,223 and personal effects.

2. When the applicant was taken back to a police station, he was found to be an illegal immigrant. He admitted both offences when first charged before Mr R.W. Davies. The applicant came to Hong Kong from Vietnam via China, could not find work and at the time of the snatching had not eaten for three days. He was sentenced to 15 months imprisonment on the immigration offence and 3 months consecutive for theft. No background reports were called for. The applicant is 18 years of age.

3. There is no longer any disagreement between the Applicant and the Respondent on s.109A of the Criminal Procedure Ordinance. The only outstanding issue is the term of imprisonment.

4. The applicant was sentenced to 3 months for theft, and for the immigration offence he was sentenced to 15 months. His sentences were ordered to run consecutively, making it a total of 18 months. We are told that he had no record of convictions in Hong Kong. I do not find in the sentences any error in principle. Both the 15 months' imprisonment for illegal remaining in Hong Kong without authority and the 3 months for the theft offence are, in my view, appropriate. However, at the time when the theft offence was committed, it is said that the applicant had no employment, “having no food for 3 days”. On his behalf, it is mitigated that the offence was committed so as to keep himself adequately sustained. In the circumstances, merely as an act of mercy, I am prepared to order the sentences imposed by the court to run instead of consecutively, concurrently. Guidance was offered by Wong J. in R. v. Yip Yuk Ching with reference to antecedent statements, and it is hoped that the guidance offered by Wong J. in that case will be duly noted by all concerned in the future.

Wong, J.;

5. I agree with the order proposed by my Lord Liu that the appeal should be allowed to the extent that the sentence of 3 months' imprisonment imposed on the charge of theft be made concurrent. I am absolutely delighted that my opinion in Yip Yuk Ching is endorsed by this court. I am indebted. I have nothing more to add.

Penlington J.A.;

6. We are indebted, as usual, to the careful and helpful arguments that have been presented to us today by Mr Macrae for the applicant and Mr Cross for the Crown. They are in agreement that the provisions of s.109A of the Criminal Procedure Ordinance are directory and not mandatory and therefore the magistrate did not need to obtain a background probation report concerning the applicant although this in fact has now been prepared. I would also endorse that the advice given by Wong J. in Yip Yuk Ching should be followed in that a brief but helpful antecedent statement should be available to the magistrate sentencing in these cases. If that had been done in this case it would have been known to the magistrate that although this applicant is young, he is married and has a son who was born the early part of this year. While that is not a strong humanitarian ground, I feel it is sufficient in view of the other circumstances of this case for the court to be able, as an act of mercy, to order that the sentences be made concurrent. This is in no way to suggest that the sentences passed by the magistrate were not perfectly proper in principle on the information that was before him. The application for leave to appeal against sentence is granted, we treat this as the hearing of the appeal and the sentence is varied to that extent.

Mr I.G. Cross Q.C. and Mr W.S. Cheung of D.P.P. for Respondent

Mr Macrae (D.L.A.) for Appellant