The Attorney General v. Leung Kai-on

CAAR000010/1972

IN THE SUPREME COURT OF HONG KONG

APPLICATION FOR REVIEW NO.10 OF 1972

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Coram: Full Court (Rigby, C.J., Huggins & Leonard, JJ)

Date of Judgment: 5th October, 1972.

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DECISION

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Rigby, C.J.:

1. This is an application to the Full Court under section 81A of the Criminal Procedure Ordinance (Cap. 221), for leave to review a sentence passed by a magistrate on the ground that that sentence was wrong in principle. Leave to apply for the purpose of making this application was granted by this court itself.

2. The facts may be briefly stated. The respondent to this application, a man aged 23, was at the material time serving a sentence of seven years' imprisonment in Her Majesty's prison at Stanley for the offence of manslaughter. On the 13th August, whilst carrying out a routine search, the prisoner was found by a warder to be in possession of a small packet containing a minimal quantity of a mixture containing heroin. It was no doubt, open to the Commissioner of Prisons either to treat the possession of the heroin as a serious breach of the prison rules and punish the offender accordingly or, alternatively, to regard it as a criminal offence - as indeed it was - and bring the offender before the court on a criminal charge. The Commissioner of Prisons, in our view entirely properly, took the latter course and brought the offender before the Magistrates Court. There, the offender pleaded guilty to the charge and the magistrate, after hearing the facts, imposed a sentence of nine months' imprisonment but ordered that sentence to run concurrently with the sentence of seven years' imprisonment the prisoner was then already serving. It is against the concurrent aspect of that sentence that the Attorney General has applied to review the sentence on the ground that the sentence is wrong in principle in that, in effect, a concurrent sentence imposes no additional punishment whatsoever for the offence which the prisoner committed and, as a consequence, is not likely to act in any way as a deterrent to other prisoners minded to seek to obtain possession of dangerous drugs in prison. The reasons given by the learned magistrate for imposing a concurrent sentence are really two-fold. First, he says that the prisoner was in the early stages of his seven year term of imprisonment, that he has a number of years left to serve and that during that period it is almost inevitable that he will be exposed, whilst in prison, to the temptation to take drugs. The magistrate considered that if, on subsequent occasions, the prisoner were to succumb to such a very real temptation and in each instance be sentenced to further terms of imprisonment then, indeed, in the aggregate, the length of imprisonment he would have to serve would be very long indeed. In such circumstances, he considered it more appropriate to give the offender, on this occasion, a strong warning. It is clear that he also considered that a necessary consequence of his conviction for this offence would be a loss of at least part of the remission of sentence for good conduct which is provided for under rule 69 of the Prison Rules, Cap. 234.

3. The second ground given by the learned magistrate for imposing a concurrent sentence in this case was the apparent ease with which prisoners serving terms of imprisonment are able to obtain drugs whilst in prison.

4. The Solicitor General, with some justification, seeks to criticize both these grounds given by the learned magistrate; the first ground, he submits, is to some extent a policy of defeatism in that the mere fact that a prisoner is likely to be subjected to further temptation to commit a particular offence whilst serving his sentence is no ground in itself for failing to impose an appropriate punishment when he succumbs for the first time to the temptation to commit that offence. On the contrary, the very fact of dealing with him in an appropriate manner when he succumbs for the first time and commits the offence, should make it abundantly clear to him that any future repetition is likely to result in even heavier penalties. As to the second reason given by the learned magistrate, it is submitted that if, indeed, it be the case that drugs can easily be obtained by prisoners serving sentences, then it should be made known in the clearest possible terms that possession of such drugs by a prisoner will result in appropriate and deterrent punishment.

5. We are satisfied that the concurrent sentence imposed in this case was, in fact, wrong in principle. The application to review the sentence will accordingly be allowed and in lieu of the sentence being ordered to run concurrently we direct that it will run consecutive upon any other sentence the prisoner is serving at the present time.

6. There is, however, one final matter to which we would refer. The learned magistrate has made reference to the fact that when imposing a concurrent sentence he envisaged that the prisoner would suffer some loss of remission of sentence consequent upon this conviction. We have expressed the view that the Commissioner of Prisons acted properly in deciding that this offence should be prosecuted before the court rather than being dealt with as a disciplinary matter. However, having chosen this course, the court considers that it would be inequitable for the Commissioner of Prisons to punish the prisoner under the Prison Rules by imposing any loss of remission of sentence consequent upon this conviction since to take such a course would, in effect, clearly be punishing the prisoner twice for the same offence. We direct that our views in this matter be brought to the attention of the Commissioner of Prisons.

Representation:

Sneath, S.G., Q.C. & Harte, C.C. for Applicant.

Asome (W.K. Lore & Co.) assigned for Respondent.