CHAN KAM-CHAU v. THE QUEEN
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CACC000466/1978
| IN THE SUPREME COURT | |
| Criminal Appeal | |
| 1978 No. 466 |
| BETWEEN | ||
| CHAN Kam-chau | Appellant | |
| and | ||
| The Queen | Respondent |
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Coram: McMullin, J. in Court.
Date of Judgment: 30th May, 1978.
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JUDGMENT
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1. The appellant was convicted of an offence under the Public Order Ordinance in that it was alleged that he had with him, at the place and time stated, an offensive weapon without lawful authority or reasonable excuse. He was also convicted of claiming to be a member of a triad society.
2. In respect of both these charges the learned magistrate imposed detention in a detention centre. In his statement of findings and reasons for sentence he states as follows:
"D. 1" (that is the present appellant) "was convicted on offence under section 33(1) of the Public Order Ordinance, the punishment for which is restricted, and I imposed one of the few sentences available to me after obtaining a Detention Centre Report."
Miss Yeung who appears for the appellant draws this court's attention to the provisions of section 33 of the Public Order Ordinance in particular subsection 2 paragraph (d) which paragraph provides the options available to the court upon convicting an offender of such an offence. Read with the opening words of subsection (2) that paragraph is in the following terms:
"A person convicted of an offence under subsection (1) shall ......
| (d) | If of the age of 21 years or more, be sentenced- |
| (i) | to imprisonment for not less than six months nor more than three years; or | ||
| (ii) | to be caned, in accordance with the provisions of Corporal Punishment Ordinance." |
Miss Yeung makes the point that these appear to be exhaustive powers conferred by that section. Mr. Polson for the Crown concedes that this is so and for my own part I cannot see that there is any answer to that argument. The order imposing detention in the detention centre was therefore wrong and inappropriate. The appeal against sentence must be allowed and the detention centre order must be set aside. I impose in lieu thereof the mandatory minimum for the offence under the Public Order Ordinance that is a sentence of six months' imprisonment to run from the date of the making of the previous order that is the 20th of April this year.
3. The appellant was convicted of two offences and the detention centre order was intended to cover both of those offences. This is not a case in which I would impose any sentence to run consecutive to any sentence for the other offence and I would impose therefore a period of one month to run concurrent with the other sentence. That is six months in all.
| (A.M. McMullin) | |
| Judge of the High Court |
Representation:
Miss Rose Yeung (John Ip & Co.) for appellant.
I. Polson, C.C. for respondent.