Fong Lun Wan v. The Queen

IN THE SUPREME COURT OF HONG KONG

(APPELLATE JURISDICTION)

CRIMINAL APPEAL NO. 233 OF 1973

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JUDGMENT

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1.  The Appellant pleaded Guilty to possession of an offensive weapon in a public place. He was stopped and searched and a knife was found on him. The learned magistrate asked for various reports and was obviously reluctant to send this man to prison: the Appellant was 18 years of age and had a clear record. The reports were not unfavourable and indicated that the Appellant had a sincere desire to reform. Nevertheless, owing to the nonavailability of accommodation for persons of his age group, he could not be sent to a Detention Centre and the learned magistrate imposed the minimum sentence allowed by law – six months’ imprisonment.

2.  As I have indicated to the Appellant, I have no power to reduce that sentence. Thereupon the Appellant has asked that the sentence should date from the date of his arrest.  He was arrested on 8th January: he was sentenced on 24th January.  The question arises whether or not there is power to order that the sentence run from an earlier date than the date of conviction or whether that would be a breach of the mandatory provision for a six months’ sentence, since it would have the effect of reducing the term which the Appellant would in fact have to serve.  I am told that on a number of occasions sentences under this Ordinance have been similarly ante-dated and I am not prepared to say that that has been a wrong practice.  In this case I think it would be proper to make the order which the Appellant asks me to make, and counsel for the Crown has not opposed my doing so. 

3.  The appeal is therefore allowed only to the extent that the sentence shall date from 8th January.

25th April 1973.