Attorney General v. Ting Chin-kong and Another

CAAR000006/1983

Criminal law - sentence - review - possession of forged document of identity - defendants illegal immigrants - suspended sentences of imprisonment - in absence of special circumstances no justification for departing from usual tariff - cost of maintaining prisoners and possibility of overcrowding in prisons not relevant factors - sentences wrong in principle - where a sentence is not wrong in principle court will interfere only if sentence is "manifestly inadequate" - those are simple words which need no elucidation - judges should avoid use of words "sense of shock".

Date of hearing : 25th June, 1983

Duffy & Dale for Applicant

G. Rodway, Q.C. & Faulkner for Respondents.

BETWEEN

Coram: Sir Alan Huggins, V.-P., Yang & Barker, JJ.A.

Date of hearing : 25th June, 1983

Date of Judgment: 13th July 1983.

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REASONS FOR JUDGMENT

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Sir Alan Huggins, V.-P.:

1. There were two Respondents to this application by the Attorney General for review of sentence. They were separately charged and separately tried on charges, under s.7A(1) of the Registration of Persons Ordinance of possession of forged identity cards. The magistrate had prepared one statement of his Reasons for Sentence in respect of both cases, although we do not know at what stage of the proceedings this statement was prepared. Strictly, we think, there should have been two applications for review, although, of course, they could properly have been consolidated for hearing.

2. In each case the learned magistrate imposed a sentence of one year's imprisonment suspended for three years and it was contended on behalf of the Attorney General that those sentences were "wrong in principle and manifestly inadequate

3. The magistrate clearly recognised that the usual sentence which had, in the immediate past, been imposed for this type of offence was about 15 months' . immediate imprisonment.   However, he does not wish to impose such sentences and has deliberately departed from the customary tariff with the intention, as he said, of creating an opportunity for the Court of Appeal to reconsider "the guidelines which he asserts have been laid down by this court should it wish to do so. Quite apart from the fact that in the case to which he referred the Court of Appeal issued no "guidelines" in relation to this offence, it is no part of the function of a magistrate to create opportunities for this court to reconsider guidelines which it has thought fit to lay down.

4. It has been forcefully stated by the Court of Criminal Appeal in England that a judge should not impose a sentence in excess of the customary level of sentences for a particular offence in a personal crusade to stamp out that offence. Where, due to a change of circumstances, it is desirable that a change in the tariff should be effected, the change may be made after proper consultation, provided that the new tariff does not contravene any principle of law established by a binding authority. The same rule applies whether the change involves an increase or a decrease in the tariff. What this magistrate did - and unfortunately it is not the first time he has done it - was to take it upon himself to try to put the world to rights where he believed that it had gone astray, and to do so regardless of established legal principle. The principle here was that, in the absence of special circumstances applicable to an individual defendant, convicted persons should not receive substantially different punishment for similar offences in different courts. There is a passage in his statement of his reasons which suggests that this magistrate has departed from the tariff at least in part for his own self aggrandizement.

5. The magistrate clearly misunderstood the judgment of this court in Chan Shau-kin v Reg. Cr. App. 1981 No. 934. That case laid down no "guidelines". It was an appeal against sentence and the judgment was based upon three principles:

No more was decided.

6. The magistrate went to great lengths to point out to the Court of appeal what he regarded as the errors of its ways. We say only two things as to that: first, that he was, as he appreciated, bound by the decision that deterrence was a material factor to be considered: and, second, that he appears to have overlooked the fact that the number of offenders which had "risen from a trickle to a flood" by January 1982 has not continued to rise until it became a deluge. This may have been due to various factors, but it is sufficient reason for questioning the magistrate's assertion that this court's objective in Chan Shau-kin v Reg. has not been realised.

7. The magistrate also argued at length that the submission of counsel for the Crown to the effect that overcrowding in the prisons was not a material factor in deciding what sentence should be imposed was wrong. although. I believe, the case has not been reported (so that the magistrate may not be aware of it) we have held otherwise. The provision of prisons is a matter for the Executive and it is the duty of the Executive to provide adequate accommodation for prisoners sentenced according to law. It is a duty which has been performed in Hong Kong with exemplary efficiency. Prisons are expensive institutions, but they supply, in the opinion of the Legislature, the least unsatisfactory form of punishment for the majority of serious offences. It is not for the courts to decline to use them, when appropriate, because they are costly. It is true that the courts normally refrain from making orders which cannot be enforced, and it may be (we do not so decide) that, if it ever became apparent that a sentence of imprisonment could not be carried out owing to lack of accommodation, a court might have to substitute some other lawful sentence. We are required by statute so--to do if places are not available for young persons whom we wish to send to a training centre or detention centre. That was not the position here. The magistrate appeared to think that he was concerned with a matter of practice and could therefore properly have regard to what in recent years has happened in Britain. We did not so regard it.  Certainly there was no reason to believe that accommodation would not be available for this Respondent if he were sentenced to an immediate term of imprisonment. In our view the contention of counsel for the Crown was sound and the magistrate was wrong to take into consideration the possibility of overcrowding in the prisons. It followed that his sentence was wrong in principle. We say nothing about his prognostication as to the size of the prison population in the future.

8. Mr. Rodway addressed us at some length on the test to be applied in deciding what conditions must be fulfilled before this court will interfere with a sentence. Since we were of opinion that the sentence was wrong in principle, the question did not here arise for decision. However, as it was suggested that the law was in disarray in the matter, we will say a few words about it. The proper test has been laid down by the Legislature and no judge has the right to substitute any other test: the sentence must be "manifestly inadequate" Those are plain English words and need to elucidation: the sentence must be inadequate and must be manifestly so. Some judges have, on occasion, talked of "a sense of shock" which they have felt at a particular sentence and in Attorney General v Lam Kam-tai 1972 H.K.L.R. 324 the Full Court even appeared to suggest that a sentence was only manifestly excessive if it induced a sense of shock. That suggestion was impliedly rejected by this court in Attorney General v Chan Wai-lan. 1982 H.K.L.R. 68. To put the matter beyond doubt we recommend that the words "sense of shock" should not be used in the context of sentencing. A sentence may be manifestly inadequate (or excessive) although a particular judge may not feel a sense of shock. Moreover, the words have an emotional content which is inappropriate to the administration of justic. That is not to say that a judge may not reasonably say to himself that if he feels a sense of shock the sentence may well be manifestly wrong: it is just safer, and will avoid unnecessary and pointless argument, to keep to the words of the statute. Having said that, we recognise that it is a tenet of the Common Law that a person should not be put in peril twice for the same offence. It is not necessary to decide whether an application for review of a sentence does in truth put a convicted person "in peril" a second time (and, because the magistrate himself was asked to review his sentences, Mr. Rodway says here "for the third time'). We accept that the word "manifestly" must mean the same whether it is associated with "inadequate" or "excessive" (Attorney General v Chan Wai-lan (supra)), but a judge will naturally find it easier to conclude that a sentence is manifestly excessive than that one is manifestly inadequate because, to use Portia's words, "The quality of mercy is not strained". That does not give the court jurisdiction to alter a sentence "as an act of mercy" where the sentence is not manifestly excessive.

9. In the present case it has not been suggested that there were any mitigating factors relating to the Respondents other than the obvious one that they were first offenders in Hong Kong. Any offence connected with forgery is serious and those connected with the use or possession of forged documents of identity are particularly serious. The fact that a convicted person is an illegal immigrant, and therefore liable to deportation, does not make it any less so. The fact is, however, relevant in that a suspended sentence of imprisonment on a person who is likely to leave the Colony and return to his native land (whether voluntarily or involuntarily)

"would really be equivalent to an absolute discharge because [he] would have left the country in a very short space of time, and he would, in fact, have suffered no penalty or sanction in respect of the offence": per Widgery, L.J. in Reg. v Newsome 1970 2 Q.B. 711, 715.

We saw no reason here to go outside the usual "bracket" or "range" of sentences imposed for offences of this kind and we thought that sentences of 15 months' imprisonment would have beer appropriate. However, in accordance with the established practice on applications for review we made a discount for the additional anxiety to which the Respondents have been subjected and imposed sentences of 12 months' imprisonment to take effect from their respective dates of sentence.

13th July 1983.

Representation:

Duffy & Dale for Applicant

G. Rodway, Q.C. & Faulkner for Respondents.