Chan Kam Sang v. The Queen

Case No.CACC 473/1971

Court

Court of Appeal

Date—

Judge—

Case Document

100%Judiciary

CACC000473/1971

IN THE SUPREME COURT OF HONG KONG

(APPELLATE JURISDICTION)

CRIMINAL APPEAL NO. 473 OF 1971

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BETWEEN
	CHAN KAM SANG	Appellant
	and
	THE QUEEN	Respondent

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Coram: Pickering, J.

Date of Judgment: 29th September, 1971.

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JUDGMENT

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1. There is no merit in this appeal in so far as the length of the sentences imposed is concerned. However, one aspect of the procedure adopted by the learned magistrate in sentencing the appellant calls for comment and correction.

2. The appellant was charged with five charges. The first was that of taking a conveyance without authority, the second, driving a vehicle without a valid licence and the third, driving a vehicle without third party risks insurance. The 4th and 5th charges, which were both of taking a conveyance without authority, appeared on a separate sheet of paper, and the learned magistrate may have been misled, at the moment of sentencing, by the fact that at the head of that sheet, there appear the words "charges to be taken into consideration". This phrase has, however, been scored out, and it is apparent from the record of the proceedings that the appellant pleaded guilty to all five charges and was not asked if he wished any charges to be taken into consideration.

3. In sentencing the appellant, however, the learned magistrate imposed 6 months imprisonment on the first charge, at the same time taking into consideration the 4th and 5th charges whereas, the appellant having pleaded guilty to those charges, he should have been sentenced in respect of them. A similar situation arose in the case of Lo Ying v. The Queen⁽¹⁾ when I had occasion to say that when a plea of guilty is entered in respect of an offence, it is an undesirable and incorrect practice to take the offence into consideration in lieu of imposing a sentence therefor. In that case I said:

"	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. Cole¹). 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. Nicholson²).
	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. McMinn³), the court would not be justified in refusing to entertain a charge or in entertaining a plea of autrefois convict. In R. v. Nicholson² the Court of Criminal Appeal was unanimously and 'strongly of the opinion that it (R. v. McMinn³) ought not to be followed in future cases, at least until it has been considered by this court' R. v. Nicholson² was followed in R. v. Neal⁴."

4. It follows that in the present case, the appellant should have been sentenced in respect of the 4th and 5th charges and I propose so to sentence him, but I consider that it would be inequitable if this course were to result in his spending a longer period of time in prison than he would otherwise have done.

5. The appeal is dismissed in respect of the first and third charges, (on the second charge, the appellant received an absolute discharge), and is allowed in respect of the 4th and 5th charges to the extent that he is sentenced to three months imprisonment in respect of each such charge. These sentences will, however, be concurrent with the six months imprisonment imposed upon him in the court below upon the first charge.

Representation:

Appellant in person

Soh, C.C. for Crown.

(1) 1967 H.K.L.R. 471

1. (1965) 49 Cr. App. R. 199

2. 32 Cr. App. R. 98

3. (1945) 109 J.P. 130

4. (1949) 2 K.B. 590