Fan Hok Yiu v. The Queen

IN THE SUPREME COURT OF HONG KONG

(APPELLATE JURISDICTION)

CRIMINAL APPEAL NO. 126 OF 1973

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Coram: Leonard J. in Court

Date: 2^nd March 1973

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JUDGMENT

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1.  This is an appeal against a sentence. The appellant in the court below had plead guilty to four offences: the offence of burglary, the offence of forgery of a cheque stolen in the course of the burglary, the offence of uttering it and the offence of obtaining property by deception by means of it. The appellant is aged 25 years and this was his first conviction. He pleaded guilty and had been frank and open with the police on his arrest. Prior to his offence the accused suffered from tuberculosis as a result of which he lost his job. This and other personal problems discussed in his probation report undoubtedly contributed to his committing the offence.

2.  In his statement of findings the learned magistrate said:

“I considered that disposal of this case by discharging the appellant, whether absolutely or conditionally, or – even if this had been recommended – by placing him on probation would have been inadequate in respect of the offences charged and that disposal by way of fines would have been inappropriate and unsuitable. I decided that custodial sentences were required, and I found no reason for suspending them or any of them.”

3.  Mr. Duckett for the Crown, with that conspicuous fairness for which he is well-known, has drawn my attention to the use of the phrase “even if this had been recommended” and points out that at the conclusion of a very favourable Probation Officer’s report the only reason why probation was not recommended was that the Probation Officer considered that it was unnecessary. Having considered the Probation Officer’s report and also the facts and the statement of findings of the learned magistrate I am convinced that these sentence are wrong in principle both because I do not consider that the making of custodial sentences was required in this case and because for the primary offence that of burglary a sentence of six months’ imprisonment was imposed while for the commercial offences consequent on the burglary sentences of nine months were imposed. I consider this to be an error even though the sentences were concurrent.

4.  The appellant was a first offender. Full restitution has been made and although the offences were based on a breach of trust in all the circumstances of the case and particularly having regard to the Probation Officer’s report I consider that I must vary these sentences. This appeal is allowed and the sentences quashed. In lieu thereof I impose on the first charge that of burglary a sentence of twelve months’ imprisonment such sentence to be suspended for a period of two years. On each of the remaining three charges I impose a concurrent sentence of nine months’ imprisonment such sentences also to be suspended for a period of two years.

Appellant in person.

Mr. Duckett, S.C.C. for Crown/Respondent.