Case Detail

CACC000129A/1984

IN THE COURT OF APPEAL

1984, No. 129

(Criminal)

BETWEEN

	THE QUEEN
	and
1.	IU Chong	(D3)
2.	CHAU Kwan-shing	(D6)
3.	CHAN Hon-por	(D8)
4.	LEUNG Nang-kei	(D9)
5.	KWONG Chi-shing	(D4)
7.	KWONG Chunk-yin	(D7)
8.	LAM Chi-wing -------------------	(D5)

Coram: Sir Alan Huggins, V.-P., Silke & Kempster, JJ.A.

Date of Judgment: 9th November 1984

_________________________

REASONS FOR JUDGMENT

_________________________

Sir Alan Huggins, V.-P.:

1. We now record our reasons for allowing the applications of the 5th and 6th Defendants for leave to appeal against their sentences of three years' imprisonment. Their applications for leave to appeal against conviction on charges of burglary were dismissed.

2. This was a case arising out of what have come to be known as "the Kowloon taxi riots" and the offences alleged were in effect offences of looting. That is enough to show that the case was a very serious one and that substantial custodial sentences were almost inevitable. Nevertheless, the 5th Defendant was at the material date between the ages of 16 and 21 years and it was mandatory that, before passing sentence of imprisonment, the judge should be satisfied that no other method of dealing with him was appropriate and, for that purpose, obtain reports as to his character and physical and mental condition: s. 109A of the Criminal Procedure Ordinance. The judge neither expressed himself to be so satisfied nor asked for reports. We obtained such reports on both the 5th and the 6th Defendant, the latter being only a few months older, and we also personally consulted the Probation. Officers. In the light of the information then available counsel persuaded us that a different sentence would be appropriate in both cases.

3. The Applicants had been in custody for about eight months, which (on the assumption that they had been of good behaviour) meant that they had already served the equivalent of a sentence of one year's imprisonment. Having regard to all the circumstances and in particular to the indication in the reports that these young men needed guidance to enable them to amend their ways, we thought that the public interest would best be served by substituting for the sentences passed by the District Judge sentences of two years' imprisonment suspended for three years on conditions. Those conditions were imposed by virtue of power conferred by s. 109B(3)(a) and were that each of the Applicants during the period of suspension be under the supervision of a probation officer and comply with the reasonable requirements of such probation officer, in particular that he should live and work at places to be approved by the probation officer.

9th November 1984

Representation:

CACC000129/1984

IN THE COURT OF APPEAL

1984, No. 129

(Criminal)

BETWEEN

	The Queen
	and
	IU Chong	(D3)
	KWONG Chi-shing	(D4)
	LAM Chi-wing	(D5)
	CHAU Kwan-shing	(D6)
	KWONG Churk-yin	(D7)
	CHAN Hon-por	(D8)
	LEUNG Nang-kei	(D9)

___________

Coram: Sir Alan Huggins, V.-P., Silke, J.A. & Kempster, J.

Date of hearing: 20th September 1984

Date of judgment: 20th September 1984

__________

JUDGMENT

__________

Silke, J.A.:

1. Nine defendants were tried and convicted in the District Court on two charges of burglary. The first charge related to a premises called the Casey Enterprise and the second related to the President Leather Fashion - both in the Argyle Centre.

2. In the early hours of the 14th January 1984 there were disturbances in the Kowloon area and a great many people on the streets. A very great deal of confusion generally prevailed.

3. Of those nine, seven appear before us seeking leave to appeal against their convictions. Two of those appeals have been determined. The 5th defendant, represented by Mr. Macrae, abandoned his application concerning his conviction. The 6th defendant was represented by Mr. Alderdice. Mr. Alderdice advanced such grounds as he could but the applicant had been positively identified as emerging from the "Leather Fashion" with leather goods and he had made admissions in a cautioned statement. Both his application and that of the 5th defendant were dismissed.

4. We are now concerned with those who were the 3rd, 4th, 7th, 8th and 9th defendants at trial.

5. It was the case for the Crown that both these premises, the "Casey" and the "Leather Fashion", having closed some time before 10:30 on the evening of the 13th January, were looted. At about 11:30 on that evening a police team from the Fourth Regional Crime Unit, Kowloon Police Headquarters were at the scene. They saw the looting taking place but because of the general confusion and difficulties that were being encountered at that time were unable to take direct action. They were undermanned.

6. At about 11:40 a group consisting of an indeter-minate number of persons both male and female were seen to come from the "Leather Fashion" premises, go diagonally across the road to the other side of Sai Yeung Choi Street and go into a premises which, on its first floor, contained an entertainment centre by the name of "Sze Kwong Ho". This group was followed by a police constable who saw some of them go to the staircase which led to the first floor. He was positively able to identify the 2nd defendant at trial - who is not before us - as the last person to enter. He was unsure of the exact number of people who did go into that "Sze Kwong Ho" Entertainment Centre.

7. The police party took up position and sealed off, according to their evidence, the whole of the premises. They remained in the neighbourhood of it until about 1:30 in the morning. At that time they entered the premises of "Sze Kwong Ho" and in it, at various parts, were found a total of nine males and two females. Also, in the "Sze Kwong Ho", some concealed and some unconcealed, were found leather jackets and fashion goods which were later identified as coming from the two premises. The nine males were arrested and eventually brought to the police station.

8. Because of the nature of the evidence and having considered the grounds of appeal which have been placed before us by Mr. Keane, with him Mr. Bell, who appeared for the 4th, 7th, 8th and 9th defendant's and by Mr. Alderdice, who appeared for the 3rd defendant, we asked Mr. Ridgeway, who appeared for the Crown both here and below, to advance argument as to why the convictions should stand. He has, at the conclusion of his address to us, and very properly if I may say so, conceded that he cannot take his case beyond this: that amongst the persons who were on the premises, some may have been thieves.

9. In our view, there is no evidence of possession which can be related directly to anyone of the defendants nor, generally, evidence that they, as individual members of the group, possessed the goods.

10. The "Leather Fashion" charge had as its basis the evidence of a group of persons seen coming from it with the leather goods and the finding of the leather goods; the "Casey Enterprise" charge had nothing other than the finding of the fashion goods in the "Sze Kwong Ho".

11. In these circumstances, we do not think that there was a case to answer in relation to the 3rd, 4th, 7th, 8th and 9th defendants at the close of the prosecution evidence. We would allow the applications for leave to appeal, treat the hearing as the appeal and allow the appeals, quashing the convictions.

12. We shall now consider the applications for leave to appeal against sentence by the 5th and 6th defendants. (The applications were adjourned pending the receipt of Reports.)

Representation:

G. Alerdice, Esq. assigned by DLA for 3rd and 6th defendants.

D. Keane, Esq. , Q.C., with A. Bell, Esq. instructed by Messrs. O'Cock and Day for 4th, 7th and 8th defendants.

D. Keane, Esq., Q.C., with A. Bell, Esq. instructed by Messrs. John Ku & Tam for 9th defendant.

A.C. Macrae, Esq. instructed by Messrs. H.M. So & Co. for 5th defendant.

P.M. Ridgeway, Esq. for Crown/Respondent.

THE QUEEN v. IU CHONG AND OTHERS

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