YIP TING CHUNG v. THE QUEEN
- Citation
- YIP TING CHUNG v. THE QUEEN
- Status
- Judgment
- Jurisdiction
- Hong Kong
- Court
- Court of Appeal
- Decision
- 26 May 1981
- Posture
- Criminal Appeal / Judgment on Appeal Against Sentence
- Case number
- CACC410/1981
- Language
- English
More details
- Court
- Court of Appeal
- Decision
- 26 May 1981
- Posture
- Criminal Appeal / Judgment on Appeal Against Sentence
- Case number
- CACC410/1981
- Language
- English
On this page
Professional case brief
Research organized from the available case record
01
Holding and result
The Magistrate's sentence was not manifestly excessive given the deliberate unlawful conduct, the extensive excavation causing significant reinstatement costs and risk to land, and the mitigating factors did not outweigh the gravity of the offence; accordingly the appeal is dismissed and the sentence affirmed.
Court disposition
Appeal dismissed; sentence affirmed.
Orders
- Appeal dismissed
- Sentence affirmed
02
Material facts
Parties
Yip Ting Chung
Appellant Counsel: Mr. A.A. Hoosen (instructed by Hoosen & Co.)The Queen
Respondent Counsel: Mr. F. WhitehouseAmounts and remedies
- Reinstatement Costs: HK$ 93,000
- Maximum Fine: HK$ 5,000
- Maximum Imprisonment Term: months 6
03
Procedural history
Posture
Criminal Appeal / Judgment on Appeal Against Sentence
04
Questions and positions
Legal issues
- 01
Whether the sentence was manifestly excessive
- 02
Appropriate penalty for unauthorised excavation causing land/topographical instability
- 03
Weight to be given to mitigating factors (age, first offender, caregiving responsibilities)
Party arguments
- Applicant
- Appellant submitted that he was a first offender, aged 67, caring for a mentally disabled daughter, unlikely to repeat the offence, and that these mitigating circumstances rendered the sentence excessive.
- Respondent
- Crown emphasised the gravity and scale of the unauthorised excavation undertaken with knowledge of refusal of permission, the significant reinstatement cost (about $93,000), the danger to farmland and topography, and that the offence was close to the worst case envisaged by the statutory provision, justifying the sentence.
05
Court’s reasoning
Legal principles
- 01
Common law sentencing principles as applied by the Magistrate and affirmed by the High Court
Sentence must not be manifestly excessive; courts must balance seriousness of offence against mitigating personal circumstances
- 02
Statutory provision referenced in judgment (section not specified)
Maximum prescribed penalty for the offence is a fine of $5,000 and imprisonment for 6 months
06
Ratio, limits and disposition
Ratio decidendi
The Magistrate's sentence was not manifestly excessive given the deliberate unlawful conduct, the extensive excavation causing significant reinstatement costs and risk to land, and the mitigating factors did not outweigh the gravity of the offence; accordingly the appeal is dismissed and the sentence affirmed.
Obiter and limits
- Crown may pursue separate proceedings to recover reinstatement costs.
- The offence was described as very close to the worst case envisaged by the statutory section.
Court disposition
Appeal dismissed; sentence affirmed.
- Appeal dismissed
- Sentence affirmed
Source and reliance status
Court of Appeal · 26 May 1981
This page organises the available record for research. Confirm quotations, current status, and subsequent treatment against the official source before relying on the case.
Judgment reading view
Judgment text
The complete available source text.
Court of Appeal
Judgment· 26 May 1981
bjbj CACC000410/1981
IN THE SUPREME COURT Criminal Appeal 1981 No. 410
BETWEEN
YIP TING CHUNG Appellant
THE QUEEN Respondent ----------------- Coram: Liu, J. in Court. Date of Judgment: 26th May 1981 -----------------
JUDGMENT ----------------- The appellant appeals against sentence. In the later part of March 1981, the appellant caused to be excavated without authority an earth path, 9 ft. wide over a distance of 1.6 km. The mud path was allegedly cut for easy transportation of the appellant's farm produce from Yuen Long to Tuen Mun. An application for permission to excavate had been refused. Nevertheless the appellant proceeded to implement his scheme. Reinstatement costs were said to be in the region of $93,000. The extent and scope of such unauthorised excavation wantonly pursued in full knowledge of the illegality reflected the appellant's utter irresponsibility and want of consideration. The excavation has caused instability to the topographical structure, endangering farm land in the valley floor of Yuen Long and Lung Kwu Sheung Tan. The maximum fine for an offence of this nature is a $5,000 fine and 6 months' imprisonment. The appellant was a first offender, not a hardened criminal. He is 67 and has the misfortune of being in charge of a daughter suffering from mental disability. It must also be recognized that there is no likelihood of repetition and that the Crown may institute proceedings against the appellant for reimbursement of the reinstatement cost. However, I am in entire agreement with the learned Magistrate that this offence of the appellant is "very close indeed to the
worst possible case envisaged by the section". Everything that can possibly be said has been said and said with considerable eloquence on behalf of the appellant, but in all these circumstances the learned Magistrate's sentence can in no way be said to be manifestly excessive. It remains for me to order (1) appeal dismissed and (2) sentence affirmed. (B. Liu) Judge of the High Court Representation: Mr. A.A. Hoosen instructed by Hoosen & Co. for Appellant. Mr. F. Whitehouse, counsel for Respondent.
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