The Queen v. Wong Mun Yee

HCMA000421/1988

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H E A D N O T E

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COMPENSATION ORDER - S.98 MAGISTRATES ORDINANCE - not to be made in advance of sentence.

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY CRIMINAL APPEAL No. 421 OF 1988

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BETWEEN

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Coram: Hon. Bewley, J. in Court.

Date of hearing: 8th July, 1988.

Date of delivery of judgment: 8th July, 1988.

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J U D G M E N T

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1. The appellant was convicted on two charges of theft by Mr Sweeney at Western Magistrates Court. The magistrate ordered the appellant to pay compensation of $3,500 and then adjourned the case until October for sentence.

2. There was no merit in the appeal against the conviction which was dismissed.

3. Section 98 of the Magistrates Ordinance, Cap. 227, provides: -

"Where a magistrate makes an order under S.36(1) or convicts a person of an offence and passes such sentence (if any) as may otherwise by law be passed, he may, in addition to the order or sentence, order the offender to pay to any aggrieved person such compensation for -

(a)    personal injury;

(b)    loss of or damage to property; or

(c)    both such injury and loss or damage, not exceeding $5,000, as he thinks reasonable."

4. If a magistrate considers a compensation order appropriate, he may make the order in addition to any sentence he passes. It is not intended that a compensation order should preface sentence. The two matters are part and parcel of the magistrate's adjudication and are properly considered at the same time.

5. The magistrate said he was adjourning this case for sentence and is presumably contemplating passing sentence on the appellant. If and when he does so, he may also make a compensation order under this section, or a restitution order under section. 30 of the Theft Ordinance.

6. Meanwhile the appeal is allowed and the order quashed.

Representation:

Mr J.A. Pethes, Senior Crown Counsel, for Respondent.

Miss Collette van der Eb, assigned by D.L.A., for Appellant.