THE QUEEN v. CHEUNG KAM-CHIU

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY CRIMINAL APPEAL No. 680 OF 1988

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J U D G M E N T

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1. The appellant was arrested on the 4th March 1988 at about 4:50 p.m. outside the Star Ferry Concourse on Hong Kong side. He was seen following a European man who was going through the second class entrance of the Star Ferry, but after the man had gone through the turnstiles, the appellant turned back and remained standing at the concourse.

2. This aroused the suspicions of a police constable who was on duty there. The appellant was approached by this police constable and searched and a Canon camera was found on him. He was at first suspected of being in possession of an offensive weapon because the police constable who had searched him noticed that his jacket was bulging out. He was then questioned by the police officer about the camera and he replied that he bought it for $800 about three years ago in Shanghai Street but had forgotten the name of the shop and that he was going to take a few pictures in the Central District of Hong Kong that day and there was a roll of Kodak film inside the camera.

3. The police constable opened the camera but found no film inside. The appellant was further questioned about this, his response was that shortly after 2:00 p.m. that same day, he had taken a taxi from Wanchai to Central and in the rear seat he found the camera, he just took it and as he had no money to spend, he was going to pawn it in Yaumatei.

4. The police constable did not accept his story at that time and took him back to the Police Station. He was searched and several pawn tickets were found in his possession. The appellant was then charged altogether with eleven charges, i.e. unlawful possession, theft (alternatively unlawful pawning), and giving false information to a pawnbroker.

5. In the course of the trial, certain errors were discovered in the charge sheet and the prosecutor offered no further evidence with regard to the charges of theft and unlawful pawning. The appellant had pleaded not guilty to the first charge of unlawful possession but had pleaded guilty to three charges of giving false information to a pawnbroker. At the trial, after the police officer had given evidence regarding the appellant's arrest and of what had occurred after his arrest, the appellant offered no explanation to the magistrate as to his possession of the camera. He gave no evidence at the trial and the magistrate in accepting what the police constable had said and being satisfied that the camera was at the time of appellant's arrest in his possession, found him guilty of the offence of unlawful possession. The appellant appealed against his conviction On the charge of unlawful possession on the ground that there was insufficient evidence or no evidence to support the conviction and also that he did not know what unlawful possession meant. There is a minute to the effect that the charge was read and explained to him after which he pleaded not quilty to the offence and also there is ample evidence upon which the magistrate was entitled to convict. I therefore dismissed his appeal against conviction on the unlawful possession charge. The appellant has altogether 36 previous convictions, namely, larceny from vehicles, larceny from dwelling house, membership of triad society, giving false information to a pawnbroker, possession of dangerous drugs and unlawful possession, and on each of the occasions when he was convicted of giving false information to a pawnbroker, he was fined.

6. The magistrate imposed a sentence of three months imprisonment in respect of the unlawful possession charge and four months on each of the "giving false information to a pawnbroker" charge, and ordered that all of the sentences be served consecutively, i.e. he was sentenced to a total term of 15 months imprisonment. The appellant appeals against these sentences as being too severe.

7. I see no reason to interfere with the sentence imposed for unlawful possession but it appears to me that in respect of the offences of giving false information to a pawnbroker, the sentence of four months imprisonment in respect of each of those charges is, as the appellant complains, too severe. It appears to me that the magistrate when imposing the sentences for the pawnbroking offences was unduly influenced by the charges which the prosecution had decided to offer no further evidence, that is, seven charges of theft or unlawful pawning to which the pawnbroking offences were linked. In my view, the appropriate sentence for the three offences of giving false information to a pawnbroker, having regard to the appellant's previous convictions for similar offences, would have been two weeks for each offence at the most.

8. Accordingly the appeal against sentence is allowed to the extent that the sentences in respect of the pawnbroking offences are each reduced from four months imprisonment to two weeks imprisonment to be served consecutively and to be consecutive with the sentence which was imposed in respect of the unlawful possession charge.