Kwok Yip Shing v The Queen

Court:Court of Appeal (Hong Kong)
Judgement Number:CACC431/1974
Judgment Date:25 Jul 1974
CACC000431/1974 KWOK YIP SHING v. THE QUEEN

CACC000431/1974

IN THE SUPREME COURT OF HONG KONG

(APPELLATE JURISDICTION)

CRIMINAL APPEAL NO. 431 OF 1974

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BETWEEN
KWOK YIP SHING Appellant
and
THE QUEEN Respondent

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Coram: Briggs, C.J., Huggins & Trainor, JJ.

Date of Judgment: 25th July 1974

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JUDGMENT

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1. This appeal was referred to the Full Court by the single judge. It is an appeal against sentences imposed in respect of offences charged in two different cases. On 13th May 1974 the Appellant was convicted of being a suspected person found loitering with intent and of going equipped for stealing. It was then disclosed that on 26th May 1973 he had been given suspended sentences of imprisonment on four charges:

Being a suspected person found loitering with intent - two months;
Possession of an instrument fit for unlawful purpose - two months;
Theft - six months;
Theft - six months.

Those four sentences were ordered to run concurrently but were suspended for eighteen months.

2. In respect of the new offences the learned magistrate imposed sentences of two months' and seven months' imprisonment concurrent. He then ordered, in effect, that the first two sentences in the previous case should take effect with the original terms unaltered but that each of the second two should take effect with the substitution of a lesser term of five months' imprisonment, all those sentences being concurrent with each other but consecutive to the sentences in the new case. The result was that the Appellant was to serve a total of twelve months' imprisonment.

3. The learned magistrate did not, as he was enjoined to do by s.109C(1) of the Criminal Procedure Ordinance, give reasons for not having ordered that the suspended sentences should take effect with the original terms unaltered, nor does it appear to us that there was any sufficient reason for a variation. The learned magistrate himself said that he thought the total of the sentences was, if anything, on the lenient side, so he can hardly have varied the original terms because he thought a total of thirteen months' imprisonment would have been extravagent. We have been driven to the conclusion that an order should have been made under s.109C(1)(a) in respect of all the sentences imposed on the Appellant...

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