Li Fong and Ku Siu Leung v. R.

CACC000016/1948

APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 16 of 1948

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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 -

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:-

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 respect of each offence as though they were distinct offences. He is sixty-one years of age. Though his record is not good, there was a period of nine years during which no conviction occurred, and the longest sentence he has served up to the present time is one of twelve months' imprisonment. It is obvious that there should not be concurrent sentences for two aspects of the same matter, and accordingly this Court will quash the conviction for malicious damage and, in respect of the pavilion-breaking and larceny, will substitute for the sentence of penal servitude a sentence of twelve months' imprisonment with hard labour.

5. One conviction quashed. One sentence reduced." Support for the view that this case may have been misreported is to be found in the judgment of Viscount Caldecote C.J. in Kite v. Brown (1940) 4 A.E.R. 293 at 295:

"For the purposes of his argument, he has referred us to R. v. Kenny (1). The report of that case is not very satisfactory, because, although the appeal in that case was against the sentence, the decision of the court, as reported, was to quash the convictions. The charge there was a double one, and the appellant pleaded guilty, first, to pavilion-breaking and larceny, and, secondly, to committing malicious damage. He was convicted of both offences and sentenced to two concurrent terms of imprisonment. In giving the decision of the court, Lord Hewart, L.C.J., said that the malicious damage was an incident to the breaking in, but nevertheless the appellant was sentenced in respect of each offence as though they were distinct offences. Thereupon he gave as the judgment of the court a decision that the conviction for malicious damage would be quashed, and that the sentence in respect of pavilion-breaking would be reduced from a sentence of penal servitude to one of 12 months' imprisonment with hard labour. I am unable to derive any assistance from that case, and the question might possibly arise, if it were necessary to look into it, whether it has been properly reported."

In Kite v. Brown it was held that the one act of selling half a pound of butter would support convictions on separate informations for supplying an unregistered customer with rationed food, and supplying rationed food without a coupon.

6. The last case to which I wish to refer is that of Williams v. Hallam (1943) 59 T.L.R. 287. That was an appeal from a conviction (on the same evidence) for larceny and (under another statute) for having unlawful possession of articles. There were separate informations but both cases were heard together by consent. The argument was based on section 33 of the Interpretation Act, 1889. In the apparent view of the Court this section was merely to the same effect as the rule as to res judicata enunciated in such cases as R. v. Barron (supra), At page 288 the judgment reads:-

"On the one hand it is said that the offence of stealing under the Larceny Act is not the same as the offence of being in unlawful possession of property under the Army Act, section 156(8), and that the magistrates did not "punish the appellant twice for the same offence. On the other hand, the argument for the appellant is that the evidence to prove each of the two offences under the different Acts was the same, or practically the same; that the stealing and the unlawful possession were merely two different aspects of the same matter; and that it is well established that out of the same state of facts a series of charges should not be preferred.

In our view, however interesting as those questions are, and important though they might be if they arose in this case, in my opinion they do not arise for decision. A judgment on them would be merely academic. In view of the facts stated the appellant seems to me to have precluded himself from taking the objection that the magistrates had no power to convict and punish him on both charges. His agreement that both cases should be tried together can have meant nothing also in the circumstances than that he was content to have one finding covering both charges. It seems to me impossible for the appellant now to complain that he has been punished twice for the same offence. Two charges were preferred against him. It was open to him to ask that the prosecution should be required to elect to proceed first on one charge, and then, whatever the result on that charge might have been, whether conviction or acquittal, to object that to proceed on the other charge was to offend against the well established rule that a second charge depending on the same, or practically the same, set of facts ought not to be allowed. He did not at the trial take this course.

As to the punishment first pronounced by the magistrates in accordance, as I think, with the appellant's consent to have both charges tried together, this was only altered to a punishment of both offences by two separate fines amounting together to the amount of the fine first awarded, on the objection of the appellant's solicitor to a single fine."

I think that principle would apply in the present case as the appellants were legally represented and took no objection to the charges being taken together.

7. Passing now to the appeals against sentence, it is worthy of note that in Williams v. Hallam the justices at first fixed one general fine of £7. On objection being taken, the justices apportioned the fine £3.10s.0d. on each charge. This course was not disapproved by the Court of Appeal and seems to indicate that where different convictions relate only to the same circumstances, it is proper to fix what total fine is just and to apportion it among the separate convictions. Counsel for the appellants argued that where a maximum fine is provided, it is unjust to inflict it on each charge where there is only one set of circumstances. The result in this case is a fine of $6000 instead of $3000 which is all the legislature intended. It is impossible to lay down a general rule and the question may be complicated by the power to inflict imprisonment in addition to a fine instead of (as here) as an alternative. There are circumstances in which the offences would be sufficiently disconnected to justify maximum fines in respect of each conviction but where it is only what was called in Kenny's case "two aspects of the same matter", I think it may be wrong in principle to do so. I think that is the case here though I would stress that each individual case must be considered on its merits and I do not attempt to lay down a general rule. In providing concurrent sentences of 1 year's imprisonment in default of payment of fine, I think the Magistrate has overlooked section 62 of the Magistrates Ordinance, 1932 under which the maximum alternative is 6 months. The term of 1 year mentioned in section 30(6) of the Telecommunications Ordinance, 1936 is to be imposed in lieu of a fine and not as an alternative for its non-payment.

8. The appeals against conviction are dismissed. Those against sentence are allowed and the fines imposed are reduced in each case to $1500. Counsel for the appellants submitted that imprisonment in lieu of fine should be consecutive rather than concurrent as the latter would result in the whole of one fine being paid without reduction of the term of imprisonment. I do not see why payments on account of fines should not be divided between the two fines - if there is any provision to the contrary, it was not pointed out to me - and if no part of the fine is paid at all, concurrent sentences would be mere favourable to accused. However, in view of the amount of the fines, I think that it is a proper case for consecutive sentences and I so order - the period of imprisonment with hard labour to be served in default of payment of any fine is fixed at 6 months.