Tsoi Tak Fai v. The Queen

IN THE SUPREME COURT OF HONG KONG

(APPELLATE JURISDICTION)

CRIMINAL APPEAL NO. 224 OF 1973

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JUDGMENT

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1.  The appellant in this case is a man of 46 years of age. He is unemployed although he gives his occupation as an “odd-job painter”. On the 16th of February 1973 he was engaged in several attempts to tamper with private cars in an endeavour to steal any article he might find in them and he was in possession of a piece of wire to assist him in this activity. For this behaviour he was charged with and pleaded guilty to two offences : one of loitering with intent to commit an offence and the other of going equipped for stealing. At the time of the commission of these offences, he was on a bond for the offence of unlawful possession. He has a bad record in that he has eight previous convictions. The first of these was for smoking opium when he was fined $30; the second for a petty theft when he was sentenced to one day’s imprisonment; the third for theft when he was placed on probation for one year; the fourth for taking a conveyance without authority and for theft when he received very short sentences of two weeks each. As these offences occurred very shortly after the probation order had been made apparently the breach of probation was therefore overlooked entirely. He was then found guilty of writing Tse Fa tickets and was fined $250.00 and of possession of dangerous drugs for the purposes of unlawful trafficking when he received a sentence of twelve months’ imprisonment. This sentence was passed on the 1st of November 1971. On the 8th of January 1973 he was found guilty of unlawful possession of some articles and placed on a bond for twelve months in the sum of $250.00.

2.  For the offence of loitering with intent, the learned magistrate imposed a sentence of three months and for the offence of going equipped for stealing he imposed a sentence of twelve months concurrent.  Moreover as regards the offence of unlawful possession and the breach of the bond in consequence the learned magistrate imposed a further sentence of three months’ imprisonment consecutive together with forfeiture of the amount of the bond or one month consecutive. Thus for these offences (of loitering and being in possession of a piece of wire to help him to steal), having regard to his previous sentence when he was placed on a bond, the learned magistrate imposed a sentence in all of sixteen months’ imprisonment for to regard this man as capable of paying the sum of $250 is purely wishful thinking. 

3.  In his statement of findings, the learned magistrate says that the penalties imposed in the past make sorry reading and “amply illustrate the futility of repeated leniency to a man who persistently flouted that leniency”.  The sentence of twelve months’ imprisonment for possession of dangerous drugs for the purposes of trafficking was clearly a lenient one by present days standards, but I did not consider that it was particularly lenient by the standards pertaining when the sentence was imposed in 1971.  It depends upon the amount of drugs involved and this we do not know.  The learned magistrate recognised when passing sentence that the normal sentence for going equipped for stealing is one of six months.  This norm is frequently imposed on prisoners with very much worse records than has this appellant.  The learned magistrate recognised that it would not have been proper for him to sentence the defendant on his record and he did not do so.  Clearly, however, as counsel for the Crown has very properly brought to my attention the leniency with which the appellant had been dealt with in the past played a large part in his deliberations.

4.  Taking all things into consideration, I am of the opinion that a sentence of sixteen months’ imprisonment in all for the activity in which the appellants was engaged was manifestly excessive.  I, therefore, allow this appeal.  The sentence on the charge for loitering with intent will remain the same; that for going equipped for stealing will be reduced to the norm of six months; that for unlawful possession will remain the same but the additional sentence of one month’s imprisonment imposed on the failure to pay the amount of the bond will run concurrently with that for unlawful possession which will of course remain consecutive to that of going equipped for stealing. The net result of this is that the overall period which the appellant will be imprisoned will be one of nine months’ imprisonment instead of sixteen months. 

Appellant in person.

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