NG KWOON SHING v. THE QUEEN

CACC000776/1971

 

IN THE SUPREME COURT OF HONG KONG

(APPELLATE JURISDICTION)

 

CRIMINAL APPEAL NO. 776 OF 1971

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BETWEEN
	NG KWOON SHING	Appellant
	and
	THE QUEEN	Respondent

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Coram: Pickering, J.

Date of Judgment:

 

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JUDGMENT

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1. The appellant was charged with two offences of robbery contrary to s.10 of the Theft Ordinance. In respect of the (A) offence, he was jointly charged with another youth.

2. The learned Magistrate sentenced the appellant to 18 months imprisonment on the (A) charge, taking the (B) charge into consideration. The magistrate adopted this course because he was under the impression that had a general instruction of the Director of Public Prosecutions been followed by the prosecutor the (B) charge would never have been brought. The instruction in question is to the effect that except in the case of very serious offence where the matter should be referred to the Legal Department for consideration, charges should not be brought where the only evidence is the uncorroborated confession of an accused. In his Statement of Findings the learned Magistrate said he now realised that he misunderstood the position and that the (B) charge had in all probability been considered by the Legal Department and the decision reached to proceed on it. Accordingly the learned Magistrate considers that he should have sentenced the appellant upon this charge.

3. I entirely agree and must proceed to remedy the magistrate's unwitting failure. There is no merit in the appeal against sentence of 18 months imprisonment imposed upon the (A) charge, for in the course of this robbery a knife was produced. On the other hand, there was no evidence before the court of any weapon having been employed in the robbery the subject of the (B) charge. In sentencing the appellant in respect of the (B) charge I am taking into account both the absence of evidence of the use of any weapon and also the fact that the sentence imposed upon him on the (A) charge was no doubt a little higher than the magistrate would have imposed had he not, in sentencing the appellant on that charge, taken into consideration the (B) charge.

4. The appeal against sentence on the (A) charge is dismissed and the appellant is sentenced to four months imprisonment upon the (B) charge, such sentence to be served consecutively to that imposed upon the (A) charge.

 

Representation: