Leung Cheung Chung v. The Queen
Read the full judgment text of HCMA 17/1984 on BabelCite. This High Court CFI judgment.
1. The appellant was convicted on his pleas to charges of theft. The agreed facts disclosed that he stole a handcart from the second floor of a building and later stole two boxes of pears from outside the building, using the cart to take them away. The learned magistrate, in his record, indicated the appellant had 4 previous similar convictions. In fact the appellant had 12 previous convictions for theft, 4 for robbery and one for burglary. The learned magistrate appeared to confuse the number o
Cited by 1 case
|
HCMA000017/1984 HEADNOTE
_____ Coram: Hon. O'Connor, J. Date: 13th February, 1984 ___________ JUDGMENT ___________ 1. The appellant was convicted on his pleas to charges of theft. The agreed facts disclosed that he stole a handcart from the second floor of a building and later stole two boxes of pears from outside the building, using the cart to take them away. The learned magistrate, in his record, indicated the appellant had 4 previous similar convictions. In fact the appellant had 12 previous convictions for theft, 4 for robbery and one for burglary. The learned magistrate appeared to confuse the number of dates upon which he was convicted, with the number of offences for which he was convicted. In addition the appellant has a number of convictions for blackmail, loitering, drug offences and membership of a triad society. On his last previous occassion before the court he had been given a six months sentence of imprisonment, suspended for one year for possession of dangerous drugs, and two concurrent immediate sentencing of imprisonment of 3 months each for two offences of assaulting police officers. Of course those sentences were wrong in principle. An immediate sentence of imprisonment ought not to be passed at the same time as a suspended. sentence, R v Sapiano(1). 2. The learned magistrate, after receiving a drug addiction treatment centre report, made an order, on each charge, that the appellant be detained in a drug addiction treatment centre. He also ordered that the 6 months suspended sentence be activated and run consecutively to the drug addiction treatment centre sentence. 3. A number of comments are appropriate in regard to the course taken by the magistrate. .The power of a magistrate to pass a consecutive sentence is statutory. His powers to do so are contained in section 57 of the Magistrates Ordinance. They are confined to passing a sentence of imprisonment consecutive to another sentence of imprisonment. A magistrate does not appear to have jurisdiction to order a sentence of imprisonment to run consecutively to a drug addiction treatment centre order. The scheme of the Drug Addiction Treatment Centre Ordinance is that such an order should not precede a sentence of imprisonment, see section 6A Cap. 244.. This is understandable as the object of a treatment order is rehabilitative. It is wrong in principle to order a sentence of imprisonment consecutive to an order of a rehabilitative nature. In England it has been held that a sentence of imprisonment ought not to be ordered to run consecutively to an detention centre order, R v Raisis(2) nor consecutively to a sentence of corrective training, R v Talbot(3). 4. As is usual when making a drug addiction treatment centre order, no conviction was recorded. It is arguable whether in those circumstances a suspended sentence could be activated. Section 109B of the Criminal Procedure Ordinance refers to the suspended sentence not taking effect unless the offender 'commits in the Colony another offence', whereas section 109C refers to the offender being 'convicted of an (other) offence. It is unfortunate perhaps that the draftsman did not use the verb 'commit' or the verb convict' in both sections instead of changing from one to the other. As I have not had the benefit of hearing counsel on both sides, I make no decision on this point. It is unnecessary for me to do so. 5. It appeared to me that in the circumstances of the offences and in the light of appellants record, which showed he had previously been treated in a drug addiction treatment centre, this was not. case for a treatment order but for imprisonment. Accordingly I allowed the appeal against sentence and in substitution for the treatment orders I imposed 6 months imprisonment concurrent on each of the theft charges I also gave leave to appeal out of time against the suspended sentence, which ought never to have been imposed, and set it aside.
(1) (1968) 52 Criminal Appeal Reports 674 (2) (1969) 53 Criminal Appeal Report 553 (3) (1953) 37 Criminal Appeal Reports 23 Representation: Mr. Freeman, Crown Counsel Appellant in person |
Other judgments that cite this case