HKSAR v. PANG KA WAI

HCMA 377/99

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 377 OF 1999

(On appeal from WSCC12353 of 1998)

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REASONS FOR JUDGMENT

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This is an appeal against conviction and sentence of one offence of possession of instrument fit for unlawful purpose.

2. The evidence before the trial court in Western Magistracy consisted of testimony by police officers relating to discovery of the Appellant in a public carpark with some thirteen items of articles including keys, wires, crow bar, gloves and a radio scanner. There was also a kind of note in the Appellant's own handwriting bearing the address of a godown above a rough sketch plan with an annotation "Lots of merchandise". The Appellant allegedly made some self-incriminating admissions orally at the scene after caution. At the police station, he made a large number of written statements, all exculpatory.

3. At the trial, the Appellant complained that he had been assaulted by at least two police officers. He produced a memorandum from a doctor of a public hospital that confirms a bruised patch on his abdomen. The record shows that the learned magistrate considered all the evidence, admitted the oral admissions as evidence and in the end convicted the Appellant.

4. Miss Lai for Appellant contended that the conviction was unsafe and unsatisfactory because the learned magistrate erred in admitting the oral admissions despite the medical evidence about the bruise. I noted that the evidence against the Appellant was very strong even disregarding the oral admissions. The learned magistrate had ample evidence to convict even if the verbals were rejected. As to the medical evidence, the fact that a person in custody was later found to have a bruise on him does not necessarily cast sufficient doubt on the prosecution case. If that is the case, any self-inflicted injury or prior existing injury would automatically render any voluntary confession untenable as evidence. In fact, the Appellant did not give evidence. His complaint through counsel of assault is by nature vague and is not even evidence. The memorandum as agreed evidence on its own is virtually meaningless. The learned magistrate was entitled to give it only cursory consideration.

5. In the premises, the conviction is unassailable and must be upheld.

6. On the sentence, the learned magistrate stated at the conclusion of trial that

"You denied the offence and claimed innocence when interviewed by the probation officer. Given those circumstances, it seems to be that I would be failing my public duty were I not to impose a custodial sentence. For this offence you will go to prison for 6 months."

Miss Lai for the Appellant suggested that, in so saying, the learned magistrate appeared to have sentenced the Appellant for denial of his culpability and thus erred in law.

7. It is difficult, and improper, for me to second guess what the learned magistrate had in mind. There may be a perfectly acceptable explanation. But as the Court of Appeal has on numerous occasions pointed out, in passing sentence, the trial court must not take into account the conduct of defence. Pleading guilty is a factor for mitigation but the converse is not a factor for the level of sentence. See, for instance, The Queen v. Tam Chi Yim, Criminal Appeal No. 319 of 1993. In this case, the learned magistrate appeared to have lapsed into error.

8. On the other hand, as the learned magistrate pointed out, the Appellant was well equipped. This is not a case of one screw-driver or one razor blade. The learned magistrate cannot be criticized for imposing an immediate custodial sentence even though the Appellant had no previous record. After all, counsel for the Appellant quite properly conceded, there is no guideline for this sort of cases. But for the unfortunate remark made at the time of passing sentence, I would have thought that the learned magistrate was within acceptable margins in using 6 months as the starting point. What he should have done is to give credit for a clear record or to refrain from making a gratuitous remark that gives the Appellant a justified feeling of grievance.

9. In the circumstances, in exercise of my powers, I reduced the sentence by one-third to 4 months immediate imprisonment.