Li Hok-ming v. The Queen

CACC000176/1978

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Coram: Huggins, J.A.

Date of Judgment: 16th March 1978.

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JUDGMENT

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1. In this case the learned magistrate decided that it was proper to order that the Defendant be conditionally discharged under s.36(b) of the Magistrates Ordinance upon his entering into his own recognizance in the sum of $500 for a period of eighteen months. He was asked not to record a conviction and he expressed the view that it really did not matter whether he recorded a conviction or not and that not to do so would not assist the Appellant - in his words "it would not achieve the aim of the Appellant". I am not quite sure what "aim" the Appellant had in this matter except to ensure that he should not have a conviction recorded.

2. The Crown concedes that the magistrate was wrong in his approach, that he did have a discretion and that he failed to exercise it. This is a matter which I know has exercised the minds of magistrates for a very long time and I should perhaps say a few words as to why I accept Mr. Ingham's concession in the matter and hold that the learned magistrate was wrong. He has himself written an article which has been drawn to my attention through his own Reasons for Findings and he has set out there in detail his reasons for taking the view that no purpose is served by not recording a conviction. It is with reluctance that I dissent from the view which he has set out with considerable care and after considerable study. He rightly points out that there are several provisions affecting magistrates which enable them to make orders akin to orders under s.36 of the Magistrates Ordinance. There is s.3 of the Probation of Offenders Ordinance and there is s.4 of the Drug Addiction Treatment Centres Ordinance. There exists a slight difference in wording between these provisions: in one case it is "with or without recording a conviction" and in another it is "with or without proceeding to conviction". Then there is s.107(1) of the Criminal Procedure Ordinance which applies to the District Court and to the High Court and which deals with the "probation of offenders", as it is there called, where a conviction has been recorded. Comparison of these provisions shows that in some circumstances it is possible that a person who has been found guilty shall not be convicted. It is wrong in my view to assume that a verdict of guilt is necessarily a conviction. For some purposes it clearly is: see, for example, Rex v. Sheridan 1937 1 K.B. 223. In that case the court refferred to an earlier decision of Reg. v Blaby 1894 2 Q.B. 170, about which the court said this:

The case of Rex v Manchester Justices, Ex parte Lever 1937 3 All E.R. 4 was a similar type of case. But those cases turned upon their own particular statutes, and so did Kelly v Russell 1970 Arg. L.R. 644, to which the learned magistrate referred. In a case where the relevant words in a statute were "without proceeding to conviction" (as in our Probation of Offenders Ordinance) it was held that an appeal lay despite the dismissal of an information under the Probation of Offenders Act, 1907 on the ground that it was inexpedient to punish the defendant: Oaten v Auty 1919 2 K.B. 278. The point was that unless there was a "conviction, order or determination" there was no right of appeal under s.33 of the Summary Jurisdiction Act. That was an unfortunate case where a man was charged with failing to do his military service, a matter upon which feeling ran very high in the United Kingdom during the First World War. The appellant had claimed that he was a minister of religion who was exempt from military service. He was found not to be a minister of religion but the court decided that he should be discharged with no conviction recorded. It was a difficult case. Four of the five judges who sat specially to hear it held that there was no "conviction" but that there was a "determination". Darling, J., made these observations at p.282:

"The words of s.1 of the Probation of Offenders Act, 1907, are unscientific, thoroughly illogical, and are merely a concession to the modern passion for calling things what they are not; for finding people guilty and at the same time trying to declare them not guilty. Here the justices have found the offence proved - they use the word 'offence' - and they make an entry to that effect in the register of the Court, but because they acted under the Probation of Offenders Act, 1907, and considered it inexpedient to inflict any punishment, it is said that no appeal lies. If this appellant cannot appeal a grave injustice might be done."

and he went on to say on the following page:

"Rex v Ireland 1910 1 K.B. 654 and Felstead v The King 1914 A.C. 534 show that the word 'conviction' is a verbum aequivocum, a word of very uncertain meaning. It is a great pity that a word is so used as to become more equivocal even than it was in the Middle Ages. The Probation of Offenders Act, 1907, has allowed the justices to find all the facts that make a person guilty but to enter in their record that he is not guilty. The logical and proper procedure would have been to provide that the justices should record that in view of the trivial nature of the particular offence or for one or other of the reasons mentioned in the Act no punishment would be inflicted and the accused might appeal, punishment or no punishment, in this case against the stigma placed upon him as a person who has broken a law which goes to the safety of the country. For the reasons I have given I think that, notwithstanding all the ambiguities and difficulties with which the point has been involved by the Legislature, an appeal lies in this case."

Avory, J. approached the matter differently. He said at p.289:

"Sect. 1, sub-s. 1, of the Probation of Offenders Act, 1907, may be made sensible by reading the words 'the Court may, without proceeding to conviction' as meaning 'the Court may, without proceeding to record the conviction.' I have no doubt that that was what was intended by the Legislature. The words, if taken literally, may be illogical, but the word 'conviction' has different meanings. Sometimes it means an adjudication that a person has committed the offence charged against him; sometimes it means that, plus the judgment of the Court upon it. In s. 1, sub-s. 1, I have no doubt the word is used in the second of these senses, namely, an adjudication that an offence has been committed plus the judgment."

Illogical or not I think a verdict of Guilty is not a conviction for the purposes of the Probation of Offenders Ordinance, which is similarly worded to the Probation of Offenders Act, 1907. For my part I see no real illogicality in the language used by the Legislature, language which has in fact since been adopted in later legislation in spite of the decision in Oaten v Auty. I think it is reasonable to interpret "conviction" as meaning something different from "verdict of Guilty", but, be that as it may, there is authority for the view that until recorded there is no conviction under the Act of 1907 and under our Probation of Offenders Ordinance.

3. Now, as I have said, s.36(1) of the Magistrates Ordinance uses the words "with or without recording a conviction". Sub-s.(3) says in part:

"An order made by a magistrate under this section shall ... have the like effect as a conviction".

That seems to me to indicate that there is no substantial difference for present purposes between an order discharging "without recording a conviction" and making an order of probation "without proceeding to conviction".

4. If there is no conviction the court's determination should not in my judgment be referred to as a conviction either in those proceedings or in any subsequent proceedings. The courts cannot dictate to the Commissioner of Police what records he shall keep, but they can properly direct that a determination which is not a conviction shall not be referred to as a conviction in the courts of this Colony. Outside the courts the Commissioner may keep such records as he thinks fit and use them for such purposes as he may be advised. What really is the purpose of ordering that no conviction be recorded? I hope I have not done the learned magistrate an injustice when I say he appears to think that the words "with or without recording a conviction" serve no useful purpose. It must be presumed, where possible, that the Legislature does not legislate to no purpose. In my judgment the purpose is clear. Where a breach of the criminal law is de minimis or there are reasons peculiar to the defendant which make punishment inexpedient, the court may discharge the defendant and order that he be treated as if he had never offended at all. It is a power which should be exercised sparingly but which can be used in a proper case. As Mr. Ingham points out, it is based on a principle which in England is the foundation for the Rehabilitation of Offenders Act, 1974. It was wrong for the magistrate to hold that the power was of no significance and that decision prevented him from properly exercising his discretion.

5. I am aware that in Kelly v Russell (supra) Fox, J. expressed his understanding of the practice in New South Wales that orders of conditional discharge with no conviction recorded are relevant and admissible when considering penalty in relation to later offences. He said at p.647:

"Were it not so, of course, there would be nothing to prevent a person obtaining the benefit of an indefinite series of orders under the section".

I am not aware of any clear ruling by any superior court in Hong Kong on this point. I do know that the Court of Appeal has assumed in the past that it was wrong when assessing sentence to refer to a previous offence for which no conviction was recorded. The possibility mentioned by Fox, J. causes me no disquiet. It is not a sufficient answer that a court when considering sentence requires to know everything about an offender and ought therefore to be told of the previous finding of guilt in another case even if there was no conviction recorded. I think it was clearly the intention of the Legislature that neither the conviction nor the fact that a previous offence had been committed should ordinarily be referred to. I advisedly use the word "ordinarily" because I have already cited cases where the fact that an offence had been committed on a previous occasion was an element in the commission of another offence, i.e. where somebody committed an offence "having committed the same offence on a previous occasion". In such a case it is of course proper for the prosecution to prove that a previous offence has been committed. It cannot be done by the production of a certificate of conviction: it will have to be proved aliunde. But that is a very special case and I do not think that we are concerned with it today: crimes for which the sentence is heavier for a second offence are unlikely to present suitable opportunities for the exercise of the power to order that no conviction be recorded.

6. For the reasons I have given I allow the appeal against sentence. The learned magistrate did not say that this was a case where an order that no conviction be recorded was in any event inappropriate and I think that it is clear that he himself would, had he thought that it was purposeful, have made such an order. It is proper in the circumstances of this case that no conviction be recorded and I so order.

16th March 1978.

Representation: