Lam Ying v. The Queen

CACC000305/1971

IN THE SUPREME COURT OF HONG KONG

(APPELLATE JURISDICTION)

CRIMINAL APPEAL NO. 305 OF 1971

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Coram: Huggins, J.

Date of Judgment: 8th June, 1971.

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JUDGMENT

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1. This Appellant has filed a Notice of Appeal against a sentence which is stated to be a fine of $200 or 2 months' imprisonment in respect of an offence which is stated to be Breach of a Bond. In fact he was never fined $200, nor is there any such offence as Breach of Bond. What in fact happened was that on 13th October 1970 he was convicted of an offence of unlawful possession of apparatus fit for the injection of dangerous drugs and, although the criminal record states that he was bound over in the sum of $200 for 6 months, in fact he was conditionally discharged under s.36 of the Magistrates Ordinance. The Appellant was convicted again in February of this year, that is before the expiration of the conditional discharge, and for some reason or other he was convicted again in February of this year, that is before the expiration of the conditional discharge, and for some reason or other he was not brought before the court for having failed to comply with the condition of his conditional discharge. But on 29th March 1971 he was again convicted of unlawful possession of dangerous drugs and sentenced to 4 months' imprisonment. On this occasion the learned Magistrate very properly required the Appellant to answer for his offence in October. The Appellant apparently admitted that he had been conditionally discharged and was in breach of condition. The learned Magistrate forfeited the recognizance but did not impose any sentence in respect of the offence. The recognizance was one in the sum of $200. The Appellant indicating that he might not have the money to pay, an order for 2 months' imprisonment was made in the alternative.

2. The payment due upon forfeiture of the recognizance was not a "sentence" within the meaning of s.113(2) of the Magistrates Ordinance and the form of this appeal is entirely misconceived. It may be that an appeal would lie in a proper case under sub-s.(3) of that section if a bond were wrongly forfeited, but the Appellant does not allege that it was wrongly forfeited: all that he has asked is that he be allowed to pay the $200 instead of going to prison. The term of imprisonment was, from the very beginning, only an alternative in case he failed to pay: provided payment is made before the term of imprisonment has been served, either of the full amount or, if the term has started, of the appropriate amount, he will be released - subject always to his having completed the term of imprisonment imposed for the offence for which he was convicted on 29th March.

3. This not being an appeal against a sentence in respect of the offence of which he was convicted on 13th October it is not open to me to say what would be a proper sentence in respect of that offence. I merely drew attention to the case of Yu Yau v. Reg. ⁽¹⁾ and other similar cases, of which a number have been reported, which indicate that where a convicted person has been in breach of a recognizance of this kind he should be brought back to the Magistrate "and dealt with on that charge". It is open to question whether an absolute discharge (which is in effect what was given here) was an appropriate sentence. However, I have not heard argument on either side as to this and say no more about it. This appeal is not only incompetent but there is nothing in the matter which the Appellant wishes to raise before the Court and the appeal is dismissed.

8th June, 1971.

Representation:

(1) 1963 H.K.L.R. 369