Chan Wing Kei v. The Queen

CACC000334/1978

Coram: Trainor, J.

Date of Judgment: 24th April, 1978.

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JUDGMENT

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1. On 5th December 1977 the appellant was convicted in a magistrate's court of smoking a dangerous drug. The magistrate granted him a conditional discharge and ordered him to sign a bond for $500 for 12 months pursuant to section 36 (1) (b) of the Magistrates Ordinance; in addition he imposed a fine of $500.

2. On the 15th February 1978 the appellant was found guilty by another magistrate of being in possession of dangerous drugs and was sentenced to a term of 2 months' imprisonment.

3. The magistrate who dealt with the second case was informed of the previous conviction and was told that the appellant had failed to pay the fine imposed and that a warrant had been issued for his arrest. The magistrate was requested to deal with the matter of the bond and the fine rather than send the appellant back to the original magistrate who was absent from the Colony at the time.

4. The magistrate proceeded to deal with the matter and found that the appellant was in breach of his bond and therefore should be dealt with for the original offence. He sentenced the appellant to four months' imprisonment for the original offence but went further and imposed a further two months' imprisonment to be served consecutively, for non-payment of the fine. In other words what the magistrate was purporting to do was to impose a penalty of four months for the original offence and in addition another penalty of two months' imprisonment for the unpaid fine, in fact a double penalty.

5. Section 36 (1) (b) of the Magistrates Ordinance enables a magistrate when the circumstances of the case are such that it is inexpedient to inflict any punishment or any other than a nominal punishment to discharge the offender conditionally on his entering into a recognizance with or without sureties in a sum not greater than $500 to be of good behaviour and to appear for conviction and sentence or for sentence as the case may be if he is called upon at any time during such period not exceeding three years as may be specified in the order. That being so the original magistrate was wrong when, in addition to binding over the appellant, he imposed a fine of $500 which certainly is not a nominal penalty. When therefore the second magistrate imposed a sentence of two months' imprisonment for a non-payment of the fine that was quite wrong.

6. When this case appeared before me there was nothing on the record that gave any indication as to how serious the original offence was other than that the magistrate decided to apply section 36 of the Magistrates Ordinance. As he did so it is clear that he considered the offence to be of a trivial nature or that there were extenuating circumstances. When in February the second magistrate dealt with the accused for having committed a similar offence the penalty imposed for that offence was one of two months. It is very difficult to see how in those circumstances when acting in place of the original magistrate she could justify a penalty of four months for the first offence. That is a penalty twice that imposed for the subsequent offence.

7. I understand that while in prison the appellant paid $155 towards the fine of $500. I allow the appeal to the extent that I quash the sentences of imprisonment and order the $155 paid towards the fine to be refunded. The order binding over the accused to stand.

Representation:

Appellant in person.

Mr. Reid, C.C. for the Crown.