Tsoi Ching Chuen v. The Queen

CACC000346/1971

IN THE SUPREME COURT OF HONG KONG

(APPELLATE JURISDICTION)

CRIMINAL APPEAL NO. 346 OF 1971

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

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

Coram: Rigby, C.J., Huggins & Pickering, JJ.

Date of Judgment: 14th March 1972

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

JUDGMENT

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

1. This case was referred to this Court by the single judge upon one limited question, namely "whether it is right in principle that where a sentence is imposed upon breach of a conditional discharge and where the only breach is of the condition to be of good behaviour the recognizance should also be forfeited". This question arose because in two cases which came before him on appeal on the same day the judge noticed that different magistrates had taken different courses and as neither had given reasons for the course he had taken there appeared to be an inconsistency which might cause grievance.

2. This Appellant has not been professionally represented so that we have not had the benefit of argument in favour of setting aside the order of forfeiture which was made, while counsel for the Crown has said only that in some States in Australia the practice is to order forfeiture as a matter of course.

3. What clearly has to be avoided is taking the breach of recognizance into account twice: if the bond is forfeited it would be wrong to have regard to the fact that the Defendant is in breach of his recognizance when assessing the sentence for the original offence. At first sight the simplest course would be always to forfeit the bond and for the magistrate to assess the sentence on the basis of the circumstances as they existed on the day that the order for conditional discharge was made. The alternative is to take the breach of recognizance into account when assessing the sentence for the original offence. There may be said to be two considerations which would point to the adoption of the second course. First, the sentence passed must not be such that, when added to the sentence passed for the offence constituting the breach of recognizance, it produces a result which is excessively severe. To that extent subsequent events must undoubtedly be taken into account. Of course, no issue arises as to the ability of the defendant to pay the amount of the bond, which is not a "fine", but it must also be remembered that, where the defendant does not have the money to pay, yet a further term of imprisonment will have to be considered - that in default of payment. Secondly, YU Wing-yan v. Reg.⁽¹⁾ might appear to lend some support to the proposition that a defendant who is in breach of a probation order or recognizance of conditional discharge may be sentenced for his original offence as though he were not a first offender although at the time of his conviction for that offence he was in fact a first offender. In that case the question was whether the principle of FUNG Man-cheong v. Reg.⁽²⁾ precluded, in the absence of evidence of a substantial measure of violence, the imposition of a sentence of caning upon a defendant who had been reconvicted during a period of probation but who, at the time of the conviction in respect of which sentence was being passed, was a first offender. It was held that it did not. If that case was rightly decided it would seem to be logical to treat such a defendant as a recidivist for all purposes.

4. On mature consideration we think that YU Wing-yan v. Reg. should not be followed and that in any case where a sentence has to be assessed after a breach of recognizance the judge or magistrate should forfeit the recognizance and in respect of the original offence should, save to the extent already indicated, have regard only to such circumstances as existed at the date the recognizance was taken. It follows that in a case of a probation order, where, in contrast to an order of conditional discharge, there is no recognizance which can be forfeited, no penalty of any kind can be imposed directly or indirectly for the breach of the condition to be of good behaviour beyond the fact that sentence is passed for the original offence. We think it desirable that as a general rule (and we do not wish to fetter judges and magistrates in the exercise of the discretion given to them) a common practice should be followed of forfeiting the recognizance and passing for the original offence a sentence assessed in the manner we have indicated. Where a different course is followed reasons should be given.

5. In the present case the Appellant was sentenced to 6 months' imprisonment in respect of his later offence of going equipped for stealing and to 3 months' imprisonment consecutive in respect of the original offence of attempted theft. The bond of $200 was forfeited and in default of payment he was ordered to be detained in prison for one month. Both offences were related to the picking of pockets. In the later offence the Defendant was seen feeling the pocket of a man at a bus-stop and when searched he was found to have a piece of razor blade in his hand. Although the charge laid on the first occasion was attempted theft the factsadmitted in truth showed that the theft was complete, for the Appellant lifted a bundle of bank notes part of the way out of the victim's pocket while he was watching a fire. The Appellant's record shows that he has been regularly picking pockets, or attempting to do so, since 1956. The single judge was satisfied that the sentences of 6 months' and 3 months' imprisonment were well deserved. We see no reason to think that in all the circumstances, the Defendant having defaulted in payment, a total of 10 months' imprisonment was in any way excessive and the appeal is dismissed.

Representation:

(1) Crim. App. No. 320 of 1971

(2) 1963 H.K.L.R. 18