Ng Yun-fong v. The Queen

CACC000465/1978

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Coram: McMullin, J. in Court

Date of Judgment: 30th May, 1978.

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JUDGMENT

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1. This is the second appeal before me this morning in which a question has arisen out of the purported exercise of his powers by a magistrate in dealing with a charge under section 33 of the Public Order Ordinance Cap. 245 of the Laws of Hong Kong. In each case the offender was sentenced to a period of detention in a detention centre. In each case that order was intended to cover convictions upon two separate offences of which one only was an offence under section 33. In Criminal Appeal No. 466 the other offence of which the appellant was convicted was the offence of claiming to be a member of a triad society and in the present appeal the second offence of which the present appellant was convicted was that of taking a conveyance without authority contrary to section 14(1) of the Theft Ordinance. In the earlier case the impropriety of the order was clearer inasmuch as the learned magistrate expressly referred in his findings to the offence under section 33 in imposing the detention centre order. In the present appeal the detention centre order is not expressly appropriated to either of the two charges for which convictions were recorded. Nevertheless the order in the present case is equally inappropriate.

2. While detention centre treatment would be perfectly appropriate as a method of dealing either with a conviction for being a member of a triad society or with a conviction for an offence of taking a conveyance without the owner's consent, the provisions of section 33(2) paragraph (d) (which are the provisions expressly applicable in both of these cases) are on the face of them perfectly clear. They are also mandatory. In other words the magistrate confronted with an offender over the age of 21 years is entitled to impose either one of the penalties there provided and must impose one of them. He is not empowered to impose any other penalty. Paragraphs (a), (b) and (c) of that subsection deal respectively and successively with persons under the age of 14 years, between 14 and 17 years, and between 17 and 21 years. Only paragraphs (b) and (c) provide powers to impose punishment under the Detention Centres Ordinance. That power is specifically withheld in respect of offenders over the age of 21 years (paragraph (d) ). Since it is evident that the Legislature intended in this section to provide an exhaustive enumeration of the powers available to magistrates in dealing with these several categories of offender, and those powers are not to be enlarged save by some explicit provision elsewhere in the law, in neither of these appeals, therefore, was there available to the learned magistrate concerned power to impose a detention centre order in respect of an offence under section 33. Since the imposition of one of the two penalties provided in paragraph (d) is mandatory it would not have been open to the magistrate dealing with the case concerned in the present appeal to impose a detention centre order in respect of the Theft Ordinance offence and to leave the public order offence uncovered by any penalty whatsoever. Equally it would be inappropriate, in any such case, to impose the mandatory imprisonment sentence under section 33 of the Public Order Ordinance coupled with an order for detention in respect of the other offence. That was of course not done in the present case and the order appears to be intended to cover both offences.

3. Because two such cases had been presented in immediate succession before me on a single appeal day I had some misgiving that there might be more recent amendments of the law, of which I was unaware, which would provide power to do what was done by the magistrate in each case. A brief adjournment and research brought no such matter to light but Mr. Polson for the Crown was able to draw my attention to Ordinance 84 of 1976 which amended section 2 of the Detention Centre Orders by replacing the existing definition of "young offender". A "young offender" now means an offender of or over 14 years and under 25 years of age whereas formerly the upper limit was 21 years of age. In the earlier case the offender was 22 years of age and in the present case 24. It may be that in each of these cases the learned magistrate took the view that the wide provisions of section 4 of the Detention Centres Ordinance took precedence, as it were, over the restrictive and mandatory provisions of section 33 of the Public Order Ordinance. Section 4 does indeed give powers to the magistrate to impose detention centre orders on any young offender found guilty of a "relevant offence". In each of these cases the offences charged were all "relevant offences". Nevertheless, the legislative intention of section 33 seems clearly to be the intention to provide an exclusive tally of the sentencing powers available to courts dealing with offences created by that section. If the provisions of subsection 2 had not been cast in the mandatory form by the use of the word "shall" it might possibly be argued that the provision of two specific forms of punishment in paragraph (d) did not preclude resort to wider powers, elsewhere contained, even in the absence (in such other legislation) of an express provision that such powers were to be in addition to the powers contained in section 33. As to that I prefer to express no opinion but on the form of the section as it stands, and in the absence of any suggestion that there is elsewhere a provision enlarging these powers, it appears to me that the penalties provided in the alternative in paragraph (d) are exclusive of any other penalties. It may be, of course, that there has been a legislative oversight. It may have been the Legislature's intention to extend detention centre treatment to all persons guilty of "relevant offences" including offences under the Public Order Ordinance. If it be so I cannot see how that intention is to be given effect without a consequential amendment of section 33 (2) (d) of the latter ordinance. I should add that in both of the appeal cases before me this morning Mr. Polson for the Crown did not seek to oppose the setting aside of the sentences. In the present case I set aside the detention centre order and imposed in lieu thereof six months' imprisonment in respect of the section 33 offence and two months in respect of the taking of the conveyance without authority the sentences to run concurrently.

Representation:

Appellant in person.

I. Polson for Crown/respondent.