Mui Chi-leung v. The Queen

CACC000098/1970

IN THE SUPREME COURT OF HONG KONG

(APPELLATE JURISDICTION)

CRIMINAL APPEAL NO. 98 OF 1970

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Coram: Rigby, C.J.

Date of Judgment: 3 April 1970

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JUDGMENT

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1. The appellant pleaded guilty to the charges preferred against him of being a suspected person found loitering and, secondly, of being in possession of an instrument fit for an unlawful purpose, namely, to steal.

2. The facts were that he was seen by two plain-clothes policemen moving from one group of shoppers to another in a busy shopping area and he was seen to pat the pockets of various shoppers in each of the different groups he approached. Finally he was stopped by the police and searched and a small piece of razor blade was found in his right hand. The learned magistrate took the view, and no doubt correctly, that the razor blade was to be used for the purpose of cutting the pockets of unsuspecting shoppers the more easily to facilitate the appellant's purpose to steal. The appellant was sentenced to three months' imprisonment on each charge, such sentences to run consecutively.

3. In the case of Chan On v. the Queen⁽¹⁾ I expressed the view, in a case in which the facts were very similar, namely, a charge of loitering with intent to commit a felony and possession of an instrument for an unlawful purpose, that the possession of an instrument was really part and parcel of the offence of loitering with intent to steal and it was in the possession of the appellant for the purpose of assisting him to commit the offence of stealing. In that case I directed that the sentences should run concurrently and not consecutively.

4. Huggins, J. in a case in which the facts are really on all fours with the present case, namely, the case of Ng King v. the Queen⁽²⁾ took a similar view. That was a case where a man was charged with loitering with intent to commit a felony, namely, to steal, and having in his possession a razor blade for the purpose of facilitating that offence. Huggins, J. expressed the view that the offences could reasonably be treated as arising from the same incident and consequently ought not to carry cumulative sentences.

5. Finally, I refer to the case of the Queen v. McGould⁽³⁾ which, indeed, was referred to by Huggins, J. in the case to which I have already referred. McGould was a man charged with attempted housebreaking and possession of housebreaking implements by night. He was caught in the act of trying to enter premises and, upon being searched, he was found to be carrying a pair of socks and a torch. He was sentenced to eighteen months' imprisonment on each charge. In fact, he had a number of previous convictions. On appeal Lord Parker, C.J. said that the charges being based on the same facts in the same case, it was wrong in principle to pass consecutive sentences.

6. The maximum sentence that could be imposed upon the appellant in respect of either of the offences charged - both being offences under the Summary Offences Ordinance - was one of three months' imprisonment. It may well be that the learned magistrate, having regard to the appellant's past record, considered that that maximum penalty was inadequate and for that reas on he imposed the consecutive sentence of three months' imprisonment on the second charge so as to make a total of six months' imprisonment. Nevertheless, I am quite satisfied that the cumulative sentence imposed in this case was wrong in principle. Since the maximum sentence that can be imposed upon either charge is one of three months' imprisonment, the sentences in this case will be varied so as to run concurrently and not consecutively.

Representation:

Appellant in person.

Penlington, S.C.C. for Crown/Respondent

(1) Criminal Appeal No. 9/70

(2) (1966) H.K.L.R. 18

(3) 109 S.J. 573.