YEUNG KWOK-FU v. THE QUEEN

CACC001196/1979

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

CRIMINAL APPEAL NO. 1196 OF 1979

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BETWEEN
	YEUNG KWOK-FU	Appellant
	AND
	THE QUEEN	Respondent

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Coram: Silke, J. in Court.

Date of Judgment: 4 January 1980

 

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JUDGMENT

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1. The appellant appeals against the sentences imposed upon him in Kwun Tong Magistrates Court for the offences of Blackmail, Claiming to be a Member of a Triad Society and Obtaining Property by Deception.

2. For these offences he was sentenced to 6 months imprisonment, three months imprisonment and 6 months imprisonment respectively all consecutive - a total of 15 months.

3. There was also activated a suspended sentence of six months imprisonment and this was made consecutive to the other sentence passed - a totality of 21 months.

4. In cases such as this it is preferable if an overall sentence is passed on one of the charges - they are all interlinked - with sentences on the others concurrent.

5. But the matter which really gave me pause was not the quantum of the sentences passed by the learned magistrate in this case but the extraordinary series of suspended sentences passed upon the appellant by other courts - and in the light of the appellant's previous convictions.

6. The appellant had convictions for theft and burglary in January 1972 for which he was fined and bound over; for thefts in May 1972 for which he received a short sentence of imprisonment; for possession of dangerous drugs in 1973 and was sent to a Drug Addiction Treatment Centre; for membership of a triad Society in 1975 from which he was sentenced to 4 months imprisonment and two years police supervision and, in 1976, for "failing to report a change of address" for which he was sent to the Drug Addiction Treatment Centre for the second time.

7. On the 29th July 1977 he was again convicted of possession of dangerous drug and for possession of an instrument fit for injection of a dangerous drug: his sentence was a sentence of six months on each charge suspended for twelve months.

8. Almost inevitably, on the 16th September 1977 he was convicted of Burglary and sentenced to six months imprisonment. The July suspended sentences were not activated.

9. On the 4th of March of 1978 he was convicted of two offences, one of theft and the other stated to be "Breach of suspended sentence", whatever that may be, and for the first given three months imprisonment and for the second six months consecutive.

10. On the 13th December, 1978 he was convicted of the offence of being an Office Bearer of an Unlawful Society and the trial magistrate, despite the previous history of the defendant, imposed a sentence of imprisonment for six months and suspended it for twelve months.

11. The current offences were committed during the twelve months period - in October of 1979.

12. With the greatest respect to the magistrate there concerned the suspended sentence of the 13th December 1978 was one which should never have been passed.

13. I would have thought that this appellant had gone, other than in the most exceptional circumstances, far beyond the effectiveness of any suspended sentence a long time prior to December 1978. To impose such a sentence on a man of the appellant's record is simply to postpone the inevitable - and is unfair to the appellant himself. It is obviously of no effect and is really a misuse of this form of sentence.

14. That being so, while I do not think the activation of the suspended sentence by the learned trial magistrate here, in full, to have been wrong in principle, I think that the totality of the sentence passed on the interrelated current offences, taken with the activated one, should reflect the unfortunate situation whereby the December 1978 suspended sentences were imposed.

15. I intend to effect this by what which might well, in other circumstances, be considered "tinkering" and that is by making the three month sentence imposed on the Claiming to be a Member of a Triad Society conviction run concurrently with the other two sentences imposed on the current convictions. This gives a totality of eighteen months.

16. The appeal is therefore allowed in part: the sentence of three months imprisonment in respect of the 1C. charge to run concurrently with the sentence imposed on the IA. and ID. charges. The activated suspended sentence remains consecutive to the sentences imposed on the current offences.

 

 

	(William Silke)
	Judge

 

Representation:

Appellant in person.

Mr. Frank Wong for Crown.