Fung Tak v. The Queen
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CACC000095/1969 IN THE SUPREME COURT OF HONG KONG APPELLATE JURISDICTION CRIMINAL APPEAL NOS. 93, 94, 95 & 96 OF 1969 -----------------
Coram: Huggins, J. Date of Judgment: 7 March 1969 ----------------- JUDGMENT ----------------- Huggins, J: These cases are before the court on appeals against sentence by this appellant. He was convicted of unlawful membership of a Triad Society and was sentenced to three months' imprisonment. He was convicted on four charges of defilement of a girl between the ages of 13 and 16 years. In that case the learned magistrate passed a sentence of six months on the first charge and took the other three into consideration. He was sentenced to one year and one year consecutive on two charges of robbery with aggravation and finally he was sentenced to a fine of $250 or two months' imprisonment for an offence which is described as "breach of bond". I should like to point out in the first instance that there is no such offence in the criminal calender as "breach of bond". This man was sentenced to this fine not for breach of bond but for the offence of unlawful possession of dangerous drugs. He was convicted in 1968 of an offence of unlawful possession and was conditionally discharged for a period of eighteen months. Having been convicted of further offences during that period of eighteen months he was now sentenced for the original offence of unlawful possession of dangerous drugs. The total period of imprisonment to which the appellant is now subject is one of two years and eleven months, for he has not paid the fine of $250. 1. Dealing first with the cases individually, the robberies were robberies with aggravation, there being two or more persons present. In each case the victim was threatened while the property was taken from him. These cases, however, were apparently not reported to the police for the victims were never located. The learned magistrate took into consideration the prevalence of this type of offence and the fact that the appellant had been convicted of unlawful possession of dangerous drugs as recently as April 1968. He had in fact been previously convicted of larceny and larceny in a dwelling, for which he had been placed on probation for twelve months and on the second conviction had been sent to the Training Centre. The learned magistrate did not make any express reference to the fact that the offences had not been reported and that therefore the element of contrition can reasonably be taken to be a strong one in the present case. In view of the fact that the two sentences of one year's imprisonment were ordered to be served consecutively, I think that the learned magistrate did perhaps not give sufficient consideration to this element of contrition and in Appeal No.94 I shall allow the appeal and reduce the sentences to nine months' imprisonment on each charge consecutive. 2. In the case of defilement the appellant committed the offences within a period of five days. The facts stated were that on the first occasion the girl was a virgin, but on the fifth day the medical examination showed what has been described as "an old tear in the hymen". Counsel for the Crown points out, however, that when it was stated that the girl was a virgin no objection was raised by the appellant. In any event it seems to me that a sentence of six months' imprisonment was not excessive. Nor do I consider that a sentence of three months' imprisonment for membership of a Triad Society was excessive. The appellant joined the 14K in June of 1968 and has paid a sum of money as an initiation fee. 3. That leaves the charge of unlawful possession of dangerous drugs. The drugs in question were 0.2 of a gramme of diacetylmorphine hydrochloride. The appellant said that he did not smoke dangerous drugs but he bought these drugs for a fellow worker. He has not taken advantage of the chance that was given to him to keep out of trouble after his first conviction for an offence of this kind and, if this sentence erred at all, in my view it erred on the side of undue leniency. I shall not interfere with the sentence in Case No.93 of 1969. 4. The result is that the appellant will now serve a total of two years and five months for all these offences and, regarding the appeals together, I consider that to be proper. 7 March 1969 Representation: Appellant in person Mr. Lucas for the Respondent Judgment pronounced by Huggins J. in court. |