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Leung Fuk Lam v. The Queen

Read the full judgment text of CACC 363/1976 on BabelCite. This Court of Appeal judgment.

1. The appellant was charged with five counts of obtaining pecuniary advantage by deception and four of obtaining property by deception contrary to ss. 18(1) and 17(1) respectively of the Theft Ordinance (Cap. 210). He pleaded guilty and was sentenced by the learned magistrate to twelve months' imprisonment upon the first charge the other charges being "taken into consideration". He appeals against sentence.

Case No.CACC 363/1976
Court
Court of Appeal
Date—
Judge—
Case Document
100%Judiciary

CACC000363/1976

IN THE COURT OF APPEAL  
   
  Criminal Appeal
  1976 No. 363

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BETWEEN    
  LEUNG FUK LAM Appellant
  and  
  THE QUEEN Respondent

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Coram: Pickering, J.A.

Date of Judgment: 28th April, 1976.

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JUDGMENT

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1. The appellant was charged with five counts of obtaining pecuniary advantage by deception and four of obtaining property by deception contrary to ss. 18(1) and 17(1) respectively of the Theft Ordinance (Cap. 210). He pleaded guilty and was sentenced by the learned magistrate to twelve months' imprisonment upon the first charge the other charges being "taken into consideration". He appeals against sentence.

2. The facts were that by deception he obtained money and goods from a business associate, who like himself was the part owner of a grocery store, to the extent of approximately $55,000.

3. Despite the appellant's otherwise clear record there is patently nothing wrong in regard to the length of the sentence which can fairly be described as lenient. The action of the learned magistrate, however, in sentencing the appellant upon one charge only and taking the others into consideration, was wrong in principle. In Reg. v. Lo Ying(1) I said:

            "There is nothing in the record of the proceedings in the court below to indicate the learned magistrate's reasons for refraining from imposing a sentence in respect of six offences to which a plea of guilty had been entered and in lieu of imposing sentence taking these offences into consideration, nor do I know whether that practice is frequently adopted by magistrates. It is, however, an undesirable and as I see it incorrect practice, the effect of which could be to leave an accused person in an anomalous situation.  
            Having pleaded guilty to the 4th to 9th charges as well as to those in respect of which he was actually sentenced, the appellant was entitled to be sentenced on the 4th to 9th charges in order that his position for the future in regard to those charges should be crystal clear. There is authority for the view that a plea of guilty does not rank as a conviction until the offender is sentenced (see R. v. Cole (1965) 49 Cr. App. R. 199). If the appellant remains unsentenced on the 4th to 9th charges he may thus be deprived of the opportunity of pleading autrefois convict should he be subsequently charged with the same offences - and this despite the fact that the severity of his sentence on the first three charges reflected his plea of guilty on the 4th to 9th charges (see R. v. Nicholson 32 Cr. App. R. 98).  
            It is, of course, not usual to proceed in respect of offences which an accused has had taken into consideration but since the practice of 'taking into consideration' has no statutory basis but rests only upon convention there is no technical reason why a charge should not be preferred in respect of an offence previously so taken into consideration. No doubt in such an eventuality any court would, on being acquainted of the facts, treat the offender with considerable leniency but despite a former view to the contrary (see R. v. McMinn (1945) 109 J.P. 130), the court would not be justified in refusing to entertain a charge or in entertaining a plea of autrefois convict. In R. v. Nicholson the Court of Criminal Appeal was unanimously and 'strongly of the opinion that it (R. v. McMinn) ought not to be followed in future cases, at least until it has been considered by this court'. R. v. Nicholson was followed in R. v. Neal (1949) 2 K.B. 590."  

4. It was for these reasons that I set aside the sentence of twelve months' imprisonment on the first charge and substituted sentences of two months' imprisonment upon each of the first three charges and of one month's imprisonment in respect of each of the remaining six charges, those sentences to run consecutively. The effect is that the appellant will serve the same length of imprisonment as that imposed in the court below but will be relieved of all possibility of ever finding himself before the court once more in regard to eight of the charges.

Representation:

Appellant in person.

Alderdice, C.C., for respondent.

(1) 1967 H.K.L.R. 471, 472/473.