CHAN PO AND ANOTHER v. THE QUEEN
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IN THE SUPREME COURT OF HONG KONG
(APPELLATE JURISDICTION)
CRIMINAL APPEAL NO. 172 OF 1973
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| BETWEEN | ||
| (1) CHAN Po (2) LUI Hung-lok alias LUI Lok | Appellants | |
| and | ||
| THE QUEEN | Respondent |
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Coram: Leonard, J. in Court
Date: 23rd March, 1973
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JUDGMENT
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1. The appellants in this case appeal against sentence only.
2. They were each charged with thirty-two offences in the court below. These thirty-two offences represented sixteen different transactions. The modus operandi of the appellants was a simple one. They presented themselves to various housewives, the occupants of various flats. They pretended to be public servants, that is labourersof the Urban Services Department and they asked for presents for Chinese New Year. They obtained sixteen small sums of money one or two dollars and even five dollars in a few cases. The total sum collected by them cannot have been more than about $40 in all.
3. The first appellant has a bad record. He has twelve previous convictions, one in 1958 for impersonating Government collie; one for larceny by a trick; a number for theft and going equipped for stealing. He obviously is a professional criminal.
4. The second appellant has four previous convictions. One for membership of a triad society; and three connected with dangerous drugs. On his last conviction being for possession of dangerous drugs, he was on the 12th of June 1972 placed on probation for a period of eighteen months.
5. For the offences before the court in this case, in the case of the first appellant the learned magistrate passed a number of consecutive and a number of concurrent sentences. In the case of the first appellant the consecutive sentences totalled thirty months although no one was greater than six months. In the case of the second appellant they totalled twenty months none being greater than four months. There was also imposed on the second appellant a consecutive sentence of six months in respect of his breach of probation. With this last sentence there can of course be no quarrel whatsoever. He had been placed on probation for possession of dangerous drugs.
6. The Court of Appeal in England has on a number of occasions indicated that courts should not pass a multiplicity of short consecutive sentences adding up to a substantial sentence for a number of similar offences forming a series of transactions. The proper approach is to decide what the overall sentence should be. The most recent of these cases of which I have knowledge is the case of Brown reported in 1970 64 C.A.R. at page 176. In this case I am satisfied that even although the first appellant is a professional criminal an overall sentence of two and a half years was manifestly excessive for the nature of the activity in which he was engaged. Admittedly, his behaviour was calculated to bring into disrepute the Urban Services Department and the coolies of the Urban Services Department do not (or should not) ask for or accept tips for the Chinese New Year. The record clearly suggests that had the appellants been coolies of the Urban Services Department the persons who gave the tips would have done so quite willingly, and without any feeling that they were being imposed on.
7. I have come to the conclusion that in the case of the first appellant the proper overall sentences to have imposed was one of twelve months’ imprisonment. Accordingly in the case of the first appellant this appeal will be allowed. The sentence on the B charge, that is to say, the charge of obtaining money by deception from MONG Lan-ying will be increased to a sentence of twelve months’ imprisonment. The remaining at the figures fixed by the learned magistrate but shall be concurrent rather than consecutive.
8. The second appellant is in a somewhat different case. He has never been engaged in this type of activity before and he was almost certainly led into it by the first appellant who was an experienced at this particular type of deception. The sentence imposed upon him on the second charge shall remain at four months’ imprisonment. All the other sentences passed on this appellant shall be as ordered by the learned magistrate but shall be made concurrent and not consecutive to the period of four months. The sentence of six months for breach of the probation order was, as I have said, perfectly proper and will remain. The net result of this will be that the second appellant will serve a sentence of in all ten months’ imprisonment.
| (P.F.X. Leonard) Puisne Judge |
Appellants in person.
Mr. Stapp, C.C. for the Crown / Respondent.