The Queen v. Chan Fook Hung

HCMA000203/1991

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO. 203 OF 1991

---------------------

BETWEEN

--------------------------

Coram: Hon. Hooper J. in Court

Date of hearing: 20 June 1991

Date of, delivery of judgment: 20 June 1991

-----------------

JUDGMENT

-----------------

1. On the 15th January 1991, the appellant was convicted in the Magistrates Court at Western of being in possession of a dangerous drugs for the purpose of unlawful trafficking.

2. His appeals against conviction and sentence have been dismissed, but because the appeal against sentence involved a interesting point of law, I indicated that I would state my reasons in writing.

3. The point is a simple one : Whether a magistrate who had some six weeks earlier convicted the appellant on an exactly similar charge and sentenced him to two years imprisonment, was entitled on the subsequent occasion to impose a sentence of a further two years' imprisonment to run consecutively to the previous sentence.

4. The appellant at the time he was convicted asked for a concurrent sentence but the magistrate said :

"For this offence you will be sentenced to two years imprisonment, consecutive to the sentence you are now serving in W2223/90.

I have checked HKLR Q. v. Yuen Shek-on 1987 HKLR page 736. It will not offend section 57 of Cap. 227."

5. That section referred to by the magistrate is in the following terms :-

"Where a term of imprisonment is imposed by a magistrate, either in the first instance or in respect of the non payment of any sum of money adjudged to be paid by a conviction or order, the magistrate may order that the said terms shall commence at the expiration, in whatever manner, of any other term of imprisonment which has previously been imposed by any court :

Provided that where two or more terms of imprisonment imposed by a magistrate are ordered to run consecutively the aggregate of the said terms of imprisonment shall not, in the case of a special magistrate, exceed 12 months and in the case of a permanent magistrate exceed 3 years. Nothing in the foregoing proviso shall be deemed to affect the provisions of section 44."

6. Mr Haynes, for the appellant, argues that the passing of a second sentence of two years imprisonment consecutive to the earlier sentence contravened this section as interpreted in the Q. v. Yuen Shek On (1987) HKLR 736.

7. Mr Macleod, for the respondent, argues that that authority gives support to his construction of section 57 which is that the limitation imposed by the proviso thereto was restricted to a case where sentences were imposed by the same magistrate on the same occasion.

8. Mr Haynes replies that there is nothing in the section which limits the proviso to sentences imposed on the same occasion.

9. The Court of Appeal in reaching its decision in Yuen Shek On expressly followed a decision of the House of Lords. They said:-

"The matter is now settled by Hamilton and Forrest [1981] 3 WLR 79, where the House of Lords considered the virtually equivalent provisions of s.108(1) of the Magistrates' Courts Act 1952, in effect confirming the decision in Kan Yat-fan (supra) : vide pp.85F-86G, per Lord Fraser of Tullybelton. With the greatest respect we are of` the view that Hamilton and Forrest is clearly right and should be followed."

10. Section 108 of the Magistrates Act referred to in that judgment is in the following terms :

"(1) A magistrates court imposing imprisonment on any person may order that the term of imprisonment shall commence on the expiration of any other term of imprisonment imposed by that or any other court; but where a magistrates court imposes two or more terms of imprisonment to run consecutively the aggregate of such terms shall not, subject to the provisions of this section, exceed six months."

11. Lord Fraser of Tullybelton, in giving the leading  judgment, which was accepted by the other Lords, said in commenting on this section -

"The first part of that subsection down to the semicolon contains nothing to suggest that the date on which the "other term of imprisonment" was imposed is material. If it was imposed by "that court" (i.e. by the magistrates' court itself) that might have been either on the same occasion as the, sentence which is to be consecutive to it is imposed, or on an earlier occasion. But if it was imposed by 'any other court' it must have been ipmosed on an earlier occasion. When one comes to the second part of subsection (1), after the semicolon, the provision is that where a  magistrates' court 'imposes two or more terms of  imprisoment to run consecutively' and in my opinion the natural and plain meaning of those words is to read them as referring to imposing two or more terms of imprisonment on the same occasion. I agree with Ormrod L.J. and Lloyd J. that the subsection, on its natural reading, does not limit the power of the magistrates' court to impose sentences of a total amount of six months or 12 months in all circumstances."

12. In my judgment, the differences between the relevant section in the Magistrates Act and the Hong Kong Magistrates Ordinance is not sufficient to render the House of  Lords' decision ineffective in Hong Kong. It is clearly the view of the Court of Appeal in Yuen Shek On that magistrates should follow that House of Lords decision.

13. In my judgment, despite the fact that the sentence in the second case was imposed by the same magistrate who passed sentence in the first case, nevertheless, as it was not passed on the same occasion, it was not caught by the limitation in the proviso.

14. For these reasons, I dismissed the appeal against sentence.

Representation:

Mr John Haynes, assigned by D.L.A., for appellant.

Mr H. Macleod, for the Crown.