Tsoi Tat v. The Queen
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CACC000871/1969 IN THE SUPREME COURT OF HONG KONG (APPELLATE JURISDICTION) CRIMINAL APPEAL NO.871 OF 1969 -----------------
Coram: Rigby, C.J. Date of Judgment: 30 January 1970 ----------------- JUDGMENT ----------------- 1. The appellant pleaded guilty to three charges preferred against him, all of larceny from dwelling houses. He was sentenced to nine months' imprisonment in respect of each charge, such sentences to run consecutively making a total of 27 months' imprisonment. 2. The facts in respect of the first charge were that he was seen by a police patrol in the vicinity of a pawnshop. He was carrying something wrapped in newspaper. He was approached and questioned by the police and it was found that what was wrapped in the newspaper was in fact a tape recorder. He was questioned as to where he had obtained it and he finally admitted that he had stolen it from a flat in Nathan Road. He took the police to the flat and the owner of the flat identified the tape recorder. The owner of the flat said that earlier that day he had gone out of his flat leaving the door open and that when he returned he found that the tape recorder was missing. 3. The appellant was taken back to the police station, where he was apparently interrogated in respect of other offences of a similar nature which had been committed in that vicinity. As a result of those enquiries he admitted two offences, which are the subject matter of the second and third charges. In the second charge it would appear that he had entered a dwelling house some two days prior to the commission of the first offence and he had taken from that dwelling house, which was in fact a 5th floor flat, a quantity of money which he found therein, together with two wrist watches - the total value of which was stated as $25.00. In respect of the third charge, it would appear that on the 15th November, which would be some four days prior to the commission of the offence concerned in the first charge in respect of which he was arrested, he had entered a roof-top hut and taken a shirt and a fountain pen set. 4. It is clear that in respect of the second and third charges the evidence against him consisted entirely of his own confession. In imposing consecutive sentences the learned magistrate has failed to take account of the fact that the appellant himself had admitted these offences and that there was really virtually no independent evidence other than his own admissions. In the case of The Queen v. Northam(1), Winn, L.J. in the course of giving judgment in that case said:-
It is, of course, true to say that the second and third charges are not charges which have been taken into consideration but are charges which are specifically contained in the charge sheet. Nevertheless, it seems to me a reasonable analogy that where you have charges which are based solely upon the confessions made by an accused person in answer to general enquiries made of him by the police, that the same consideration should be given in allowing some discount in respect of the sentences imposed on those charges. The substantive foundation of the charge in the case was the original charge upon which he was arrested by the police and in respect of which there was evidence, independent of his own admission or confession, to support the charge. The view I have expressed is to some extent supported by the decision of the Full Court in Chan Sik-wun v. The Queen(2), and the variation of the sentence made by the Court in that case. 5. The appeal will accordingly be allowed to the extent that the sentence of nine months' imprisonment on the first charge will stand, but the sentences on the second and third charges will be reduced from nine months to three months in each case to run consecutively, making a total of 15 months' imprisonment instead of 27. Representation: Appellant in person. Winter, C.C. for Crown/Respondent. (1) (1968) 52 Cr. App. R. 97 at 105. (2) (1968) H.K.L.R. 670. |