Li Fong And Ku Siu Leung v R.

Judgment Cited authorities (4) Cited in Precedent Map Related
Judgment Date20 May 1948
Year1948
Judgement NumberCACC16/1948
CourtCourt of Appeal (Hong Kong)
CACC000016/1948 LI FONG AND KU SIU LEUNG v. R.

CACC000016/1948

APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 16 of 1948

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BETWEEN
LI FONG AND KU SIU LEUNG Appellants

AND
THE CROWN

Coram: Mr. Justice T.J. Gould.

Date of Judgment: 20 May 1948

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JUDGMENT

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1. These appeals are by two appellants who were convicted by a Magistrate on the 19th Day of March 1948 each upon two charges under section 30(1) of the Telecommunication Ordinance, 1936 as replaced by the Telecommunication (Amendment) Ordinance, 1947.

2. The sub-section reads as follows:-

"30(1). Every person who, in any place in the Colony or on board any British ship registered in the Colony -

(a) establishes, maintains, works or uses a radio-communication station; or
(b) offers for sale, sells or has in his possession, whether with a view to sale or otherwise, any apparatus or material for radiocommunication,

otherwise than under and in accordance with a licence, sale permit or letter of exemption granted under this Ordinance, shall be guilty of an offence against this section."

The two charges were respectively under section 30(1)(a) for using and under section 30(1)(b) for possessing a radiocommunication station without the requisite licence. The Magistrate's note of proceedings shows that both accused were "found guilty" on both charges though at the opening of the proceedings the note is that the 1st appellant pleaded guilty to the possession charge. My attention was not called to this at the hearing of the appeal and the argument having proceeded on the basis that there had been pleas of not guilty in all cases, I will assume that to have been the case. Appeals were lodged against conviction and sentence and I will deal first with the former. It is unnecessary for me to repeat the facts other than to say there was evidence that satisfied the Magistrate that there was both "possession" and "use" by the two appellants and that the evidence indicated that the use and possession was simultaneous, only one set of facts being involved.

3. The grounds for the appeals against conviction are set out as follows:-

1. That the Magistrate was wrong in law in that
(a) He did not treat the A & B charges as alternative charges.
(b) He held that charge A did not include B and that there was more than one offence disclosed.
2. On behalf of the 2nd appellant that there was no evidence of possession.

As to the second ground, I propose only to say that I consider there was sufficient evidence to justify the Magistrate's decision. The first ground resolved itself in argument essentially into the proposition that as the use of a set in counsel's submission involves its possession, conviction on the former charge should not have been followed by conviction on the latter. This, because either on a plea of guilty to the former the appellants could have pleaded autrefois convict to the latter, or on a trial of the former alone they were in peril of conviction on the latter by virtue of the Magistrate's powers under section 21 of the Magistrates Ordinance, 1932. After consideration of this argument, I have come to the conclusion that it is not well founded. The conceptions of "use" and of "possession" are not the same in law and it is possible to have the former without the latter and vice versa. They are two different offences and conviction or acquittal on neither would support a plea in bar on the other. The fact that the Magistrate's powers of amendment in Hong Kong may go so far as to permit the substitution of one charge for another by virtue of the difference between the wording of section 21 of the Magistrates Ordinance, 1932 and the corresponding English provisions, while it may provide a reason for elimination of certain additional charges in summary proceedings would not of itself render a plea of autrefois acquit etc. supportable unless those powers had been invoked. I think that the case falls within the principles enunciated in R. v. Barron (1914) 2 K.B. 570 and that both convictions are good. If I should be wrong in so holding, there is another ground upon which they may be supported and which I will deal with below.

4. A case apparently in conflict with the conclusion I have expressed is that of R. v. Kenny 21 C.A.R. 78. I say "apparently" because the report is very brief and unsatisfactory and although it is an appeal against sentences and nothing but sentences is discussed in the judgment, it ends by quashing one conviction. The appellant was convicted and sentenced on the same facts for pavilion breaking and larceny, and for committing malicious damage. The judgment is as follows:-

"The malicious damage in this case was an incident of the breaking in, but nevertheless the appellant was sentenced in...

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