Chan on v. The Queen
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CACC000009/1970 IN THE SUPREME COURT OF HONG KONG APPELLATE JURISDICTION CRIMINAL APPEAL NO. 9 OF 1970 -----------------
Coram: Rigby, C.J. Date of Judgment: 4 February 1970 ----------------- JUDGMENT ----------------- 1. The appellant was convicted upon two charges preferred against him: one of being a suspected person found loitering with intent to steal and the other of being in possession of an instrument fit for unlawful purpose. 2. The brief facts of the case were that he was seen by a plain clothes policeman on the afternoon on the 1st December, behaving in what the police officer considered to be a suspicious manner. He was seen to follow various women who were carrying babies; following different women at different times. Finally, the police officer saw him at a stall where there was a woman carrying a baby. He was seen to take something out of his shirt and stretch his arm towards the neck of the baby around which there was a small metal necklace. The constable arrested him and found in his possession a pair of scissors. From the evidence, he was about to snatch the necklace around the baby's neck, and it was no doubt for that purpose that he had been following other women carrying babies. 3. He was sentenced to 3 months' imprisonment on the charge of being a suspected person found loitering, and a further 3 months' imprisonment, to run consecutively, on the charge of being in possession of an instrument fit for unlawful purpose. He appeals against conviction and, with leave of this court, he appeals out of time against sentence. 4. I am fully satisfied that there was ample evidence to support the conviction and the appeal against conviction is dismissed. 5. Turning now to the appeal against sentence. The gravamen of the offence of being a suspected person found loitering is that he was so loitering for the purpose of committing a felony, namely, to steal. It is obvious in this case - as, indeed, it is obvious in the majority of such cases that come before the court - that the suspected person was found in possession of the instrument he was carrying in order to further that purpose of stealing. Although there may be some justification for bringing separate charges - and, indeed, on that matter I would express some doubt - it is clear that the possession of the instrument is closely connected with, and for the purpose of aiding the commission of, the first offence, to wit, the offence of being a suspected person found loitering with intent to commit a felony, namely, to steal. In such cases, where convictions result upon both charges, in my view, any sentence imposed on each charge should run concurrently and not consecutively. 6. I am supported in that view by the decision of Huggins, J. in Ng King v. The Queen(1). In that case, the appellant pleaded guilty to being a suspected person found loitering with intent and to a second charge of possession of an instrument fit for an unlawful purpose with intent. The instrument in question was a small piece of razor blade, bound with tape to form a handle. The facts in that case quite clearly indicated that the appellant had been loitering for the purpose of stealing and the razor blade was to assist him in that purpose, namely, to slit the pockets of unsuspecting passers-by the more easily to remove the contents from those pockets. The magistrate had imposed sentences of two months' imprisonment on each charge, such sentences to run consecutively. In allowing the appeal to the extent of ordering the sentences to run concurrently and not consecutively, Huggins, J. expressed the view that the offences virtually arose from the same incident and ought not to carry cumulative sentences. With that view, I agree. 7. The appeal in this case is therefore allowed to the extent that the sentences imposed will run concurrently and not consecutively. Representation: Appellant in person. Evans, C.C. for Crown/Respondent. (1) 1966 H.K.L.R. 18 |