Lau Kwok-wah v. The Queen

CACC001055/1979

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Coram: McMullin, J.A. in Court.

Date of Judgment: 19 December 1979

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JUDGMENT

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1. The appellant in this case was convicted by a magistrate of driving while disqualified and of driving without third party risks insurance. On the A Charge he was fined $600 and disqualified from holding or obtaining a driving licence for all vehicles for three years. On the B Charge he was fined $400 and disqualified from holding or obtaining a driving licence for all vehicles for one year.

2. At the conclusion of the hearing of the appeal on the 27th of November I gave an oral decision dismissing the appeal. Two days later, when the papers of the various appeals which had been dealt with on that day were returned to me I had misgivings in case an injustice might have occurred in this case and accordingly on further consideration of the relevant authorities I ordered the case to be relisted for hearing.

3. The first question that arises is whether I have the right so to do. A relevant general principle is succinctly stated in the latest edition of Archbold in paragraph 910 at page 739 where it is said:

"The Court of Appeal, Criminal division, has jurisdiction to alter a decision or order made by it at any time up to the moment when, on receipt of the notice of the court's decision transmitted by the registrar under section 15(2), the proper officer of the court of trial enters the decision in the record of the court of trial."

The authority quoted for that general proposition is R. v. Cross⁽¹⁾. In that case the defendant had been convicted under the Theft Act and was sentenced to a total sentence of eighteen months' imprisonment. His appeal against that sentence was allowed and a two years' probation order was substituted. The Registrar made a note of that decision.

4. Later, on the same day, it came somehow to the ears of the court that the appellant had not been frank in answering certain questions concerning his previous record and that there stood against him another offence which had not been mentioned by him in making his plea for reduction of sentence. Accordingly the court felt that it might have been misled. It set aside its own order and ordered the case to be relisted for hearing before a differently constituted court.

5. When the case came on for hearing it was argued that the court had no power to deal with the matter, being functus officio. The court rejected that submission but on further inquiry sustained its original order. The learned Lord Chief Justice delivering the judgment of the court says (at page 1051):

"It is well recognised that a court of record has power to alter a judgment or order which it has made within certain limits. The limits set in general appear to be that the power to alter the judgment ceases when the judgment is, in the words of the civil courts, drawn up. In other words, the general principle seems to be that when once the judgment has been finally recorded, then the inherent power to vary it is lost."

He then referred to rule 15 of the Criminal Appeal Rules 1968 which provides:

The learned Lord Chief Justice goes on to say (page 1051):

"It is to be observed that the formality required of the registrar under that rule is in no sense the making of a record."

He then turned to the requirements laid down in the Crown Court Manual as to the action to be taken upon notification from the Registrar under rule 15. It is there provided that:

"On return of the case papers to the Crown Court, with the notification of the result of the appeal ... the decision of the Court of Appeal should be entered on the court record and the notice of the notice of the result of the appeal attached."

The learned Lord Chief Justice concludes (page 1052):

"There is, therefore, for the first and really the only time the making of a formal record of the determination of this court ... Consequently when the question arises, as it arises in this case, of the court's power to make a change in any decision or order which it has pronounced, the vital question is whether that decision or order has been recorded by the proper officer at the court of trial pursuant to the directions to which I have just referred."

6. When the matter first exercised my mind I ordered that the papers should not be submitted to the Registrar for his action under the provisions of section 119 paragraph (f) which provide, in a somewhat similar way to the English provision, that the Registrar shall send to the magistrate's clerk, for entry in his record, a memorandum of the judge's decision. My decision of the 27th of November has consequently not been noted in the record of the lower court. Applying the principle in Cross it can be said that there is yet no perfected order of this court.

7. Now it is apparent that in the case of Cross what occasioned the desire of the court to reopen matter was the fear that it had been misled and this arose because of fresh facts brought to its attention after the decision had been announced.

8. In the case of The Queen v. Daniel⁽²⁾ the decision in Cross was considered. In that case an appellant who was legally represented appeared in court upon the date fixed for the hearing of his appeal against a sentence of eighteen months' imprisonment for burglary. His legal advisers had not been informed of the date of hearing due to an administrative error. The appellate court being unapprised of the error dealt with him as an appellant in person and dismissed the appeal. These facts were brought to their Lordships' attention some days later. They perceived that an injustice had been done but were confronted with the decision in Cross and the fact that their order had been perfected. Nevertheless Lord Justice Lawton, delivering the judgment of the court said (page 623):

"If in any particular case because of a failure of the court to follow the rules or the well-established practice there is a likelihood that injustice may have been done, then it seems to us right, despite the generality of what was said in R. v. Cross that a case should be relisted for hearing."

It is apparent from the two decisions that the courts are concerned to establish that, in any case in which it appears that an injustice may have occurred, through some perceived defect in the proceedings, the matter should not be foreclosed against an appellant. It will be evident, however, that the circumstances which prompted the court's action both in R. v. Cross and R. v. Daniel are quite different from the circumstances here. Does the rule in R. v. Cross cover second thoughts on sentence?

9. The matter is not free from doubt. I am aware that in this territory in 1965 it was held by the Full Court that once the oral decision of the appellate court had been announced the court must be considered functus officio. That was the case of Reg. v. CHAN Wai-keung⁽³⁾. In that case, after an oral decision in which an appeal against a conviction for murder had been dismissed, the court had second thoughts as to the propriety of the conviction. About one month after the dismissal of the appeal the case was relisted for hearing. Upon the resumed hearing Crown counsel took the point that the court was functus officio. After hearing argument on the point the Full Court so held.

10. While according to that proposition however Rigby J. (as he then was) noted a distinction between the alteration of a conviction and the alteration of a sentence. He said (page 835):

"During the hearing of the further argument as to whether we had power to alter the oral pronouncement and decision given in open court dismissing the appeal, we were referred to several authorities dealing with the powers of a court, both in civil matters and as regards sentence in criminal matters, to alter a decision once given. Those cases, although of interest, are of little relevance or assistance when considering the authority of a court in a criminal matter to alter its judgment, as distinct from altering its sentence, once that decision or judgment has been pronounced in open court."

I do not take that authority, therefore, to be conclusive against the proposition that a question of sentence may be entered upon once more in any case which the court having pronounced its oral decision, and before its order has been recorded under section 119(b), for good reason later entertains a misgiving as to the propriety of its own order.

11. Further, I do not think that Cross and Daniel must be regarded as limiting such a review to cases where the court is later apprised of the possibility of injustice arising either from (a) administrative error prior to the hearing; or (b) information relevant to the merits improperly withheld at the time of hearing. Nevertheless this is uneasy ground. Judicial afterthoughts are obviously undesirable even on questions of sentence. I think, however, that the rule in Cross can reasonably be applied in combination with an older licence assumed somewhat informally by the criminal courts in England as part of their inherent jurisdiction.

12. I find a convenient exposition of this practice in the case of Stanley Grice⁽⁴⁾. The case itself is not on all fours since it concerns the power of a Crown Court Judge to alter a sentence under the provisions of subsection 2 of section 11 of the Court Act 1971 within 28 days of the date upon which he imposed it.

13. The Court of Appeal took the view that notwithstanding that the wording of the section seemed apt for such a course it yet did not cover a case in which the judge had merely altered his view of the propriety of a suspended sentence and had activated it because of information subsequently received. But in considering that matter Lord Justice Waller made some general remarks which are germane to the problem which I have set myself. At page 172 he says:

"But one must look at the background to that subsection and the circumstances in which it was passed. The Courts Act 1971 abolished the system of criminal trials throughout this country which had existed for hundreds of years and set up an entirely new system. Until 1972 the judge going on Assize, passing sentences in court and at the end of the Assize, passing sentences in court and at the end of the Assizd he signed the calendar authenticating the sentences which he had passed, and the recorder of Borough Quarter Sessions did the same thing. It is within the knowledge of the members of this Court that judges from time to time passed a sentence in court and thought better of it in the course of the next few days, and when signing the calendar reduced it. But certainly no judge, in our experience, ever used that provision to increase the sentence."

14. On all of this I conclude only that a downward revision of sentence is not outside the power of an appellate judge up to the time when his original order has been perfected. Mr. Boase who appears for the Crown has intimates that he does not wish to argue to the contrary of this proposition. Nor does he wish to add anything to what was said by Mr. White who appeared originally for the Crown as to the substantive merits of the appeal.

15. As to the merits, what I think was overlooked at the earlier hearing was that the learned magistrate had fully accepted the appellant's explanation of how he came to be driving a private car although disqualified in respect of such vehicles. He found that this amounted to "special reasons" sufficient to justify his not imposing a prison sentence under section 25.

It was, perhaps, because of that that he felt obliged to make an especially strong order of disqualification. Like myself I think he may have overlooked the full impact of that order.

16. The appellant is a young man who runs a secondhand car business. He had borrowed money to set up that business and was hard put to maintain it and repay the loan. He had taken on a second job as a substitute taxi driver and this brought him in an additional $1,000 per month. His earlier disqualification did not affect this source of income. The present total ban on the driving of all vehicles will if sustained be likely to cripple his business and it amounts, in practical terms, to a fine of some thirty-six thousand dollars. In all the circumstances this seems to me to be too great a penalty notwithstanding the serious character of the offence as a second offence. Accordingly the orders for disqualification are set aside and for them will be substituted orders of disqualification in respect of private cars only to run, from the date of conviction, for three years on the A Charge and for one year on the B Charge.

Representation:

Appellant in person.

White for Crown/respondent.

(1) (1973) 2 W.L.R. 1049.

(2) (1977) 1 All E.R. 620.

(3) (1965) H.K.L.R. 815.

(4) 66 Criminal Appeal Reports 167.