Wong Chi-ming v. The Queen

CACC000931/1973

IN THE SUPREME COURT OF HONG KONG

APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 931 OF 1973

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Coram: Cons, J., in Court.

Date of Judgment: 12 February, 1974.

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JUDGMENT

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1. The appellant pleaded guilty to being a suspected person loitering with intent under the Summary Offences Ordinance and to going equipped for the purpose of stealing under the Theft Ordinance. He was seen mingling with the crowd at a pedestrian crossing and stretching out his hand towards the pockets of the passers-by. When arrested he had a small piece of razor-blade, one end of which was wrapped with cellophane to form a sort of handle, concealed between his fingers. He was sentenced to three months and twelve months respectively, the sentences to run concurrently. He now appeals against the longer sentence only.

2. In 1972 a prosecution for similar charges was referred to the Full Court (Reg. v. NG Chun-ting ⁽¹⁾). There the appellant had tried in turn to take away several bicycles left unattended in the street. He failed each time because the bicycles were locked. To overcome this difficulty he finally turned to a pair of nail-clippers which, perhaps by chance, happened to be in his pocket. At that moment he was arrested. The Full Court concluded that in those circumstances it was clear that the principal offence was that of loitering and that it was mani-festly unfair and unreasonable to impose for the charge of going equipped for stealing a sentence greater than the three months allowed under the Summary Offences Ordinance. But at the same time the court was careful to point out that its comments were limited to the special and peculiar facts of that particular case. The present case may be easily distinguished. The piece of razor-blade was not an object that by itself would presuppose innocent intent. It was something deliberately adapted for one particular form of theft. Going equipped for stealing was obviously the principal charge. It hardly seems necessary to have included the other.

3. What then is the proper sentence? Going equipped for stealing is a comparatively novel offence. It was introduced into the law by the Theft Ordinance in September, 1970 and carries a maximum sentence of three years. The initial reaction of the magisterial bench appears to have been that cases appearing in that court would, as a general rule, merit a sentence of nine months' imprisonment. However, the learned Chief Justice of that time appears to have taken the view in a number of cases that six months was more appropriate. This view was based upon the fact that prior to the Theft Ordinance the only charge that could have been brought in similar circumstances was one under section 17 of the Summary Offences Ordinance, which carries a maximum imprisonment of only three months. The details of those cases are lost. Crown Counsel has searched, but been unable to find, the records. The only information available is contained in a later judgment given in June the following year (Beg. v. MOK Wing-lok ⁽²⁾) in which the learned judge, for the sake of uniformity of sentence, followed the learned Chief Justice and reduced the sentence to six months. That case was itself followed, and for the same reason, in three other cases ⁽³⁾. Unfortunately, only in the first of these four cases is any indication at all given of the facts involved. Even then the report is brief and merely mentions the use of a piece of wire in an attempt to force a car window.

4. It is, of course, desirable that sentences should bear comparison one with another but the different circumstances of each individual case must never be overlooked. And the present case is a far cry from what appears to have been the position in the cases to which I have just referred. It is more akin to an earlier case in England (Reg. v. Person ⁽⁴⁾) where a man equipped for burglary was found attending to basement windows. He had been sentenced to nine months. The Court of Appeal said that it was quite clear that such a sentence was not too great and remarked that this particular section was a very important piece of preventive justice and that the sentence imposed for it must be sufficient to deter other people from doing the same. Larceny from the person is a serious crime. The appellant is a professional pick-pocket. Twelve months in this case is by no means an excessive sentence and this appeal is dismissed.

Representation:

Appellant in person.

Corrigan, C.C., for Crown.

(1) Cr. App. 731 of 1972

(2) Cr. App. 287 of 1971

(3) Cr. App. 395, 395, 407 and 454 of 1971

(4) 1969 53 Cr. App. R. 640