Law Kwok-wah v. The Queen
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CACC000592/1981
----------------- Coram: Li & Silke, JJ.A. & O'Connor, J. Date of Judgment: 4th November 1981
----------------- JUDGMENT ----------------- O'Connor, J. 1. This is an appeal against sentence. The appellant was charged before the District Judge with four counts of burglary, the offences being committed at building sites during the night time. The watchman on each of the first three occasions, when he came to work in the morning, found that doors had been forced and goods taken. On the fourth occasion the police laid an ambush and saw three men arrive in a van and commence to move goods from the building site onto the van. The police came out from ambush positions and made arrests. The four offences span a period of just over one month. When the appellant first appeared before the District Court he pleaded not guilty in respect of each charge. When the case next came before the District Judge the record simply shows that a plea was taken again to the fourth charge and that he pleaded guilty to it. The facts were then read and explained to him and that he was found guilty of that charge. A request was then made that the other charges be taken into consideration and this was agreed to by all parties, including the defendant personally. The District Judge then proceeded to sentence on the fourth count and in sentencing on that charge he took into consideration the facts of the first three charges. I should mention that before proceeding to sentence, the facts of the first three charges were agreed to by the appellant. 2. We have some remarks we would like to make about the procedure adopted. The practice of taking outstanding charges into consideration in passing sentence is well-known to the courts. It is a practice that arose at the end of the last century in England. It appears to have no statutory foundation in England nor in Hong Kong, save for a provision in Section 81 of the District Court Ordinance. Section 81 of the District Court Ordinance may have been enacted in order to provide jurisdiction to take into consideration charges that the court may not have had jurisdiction to try. The well recognised practice of the courts has been that a court ought not to take into consideration an offence which it has not jurisdiction to try. Section 81 of the District Court Ordinance says nothing about the procedure to be adopted. There is some authority in Leung Choi v. F. W. Kendall [1961] H.K.L.R. page 649 indicating that an offence ought not to be taken into consideration where that charge is formally before the court for trial. It appears to us that where a charge is formally before the court for plea, the court should take the plea and proceed thereafter according to the plea, if a plea of guilty to sentence thereon, and if a plea of not guilty to hear the case. Of course this is all subject to the Attorney General's right to enter a nolle prosequi, and the court's power to permit the prosecution to offer no evidence if the circumstances so warrant. However, we think a court should exercise great caution before taking into consideration charges which are before the court for plea or trial. Before a court adopts the course of taking such charges into consideration it should enquire into the reasons suggested for not hearing the charges, and the record should show that reasons have been asked for and provided, and what those reasons are. This was not done in the present case. We have been told that the reason that the prosecution agreed to the course that was adopted in this case, of taking charges upon which pleas of not guilty had been entered, into consideration, was because though the prosecution were prepared to proceed with the charges, they probably recognised that they might have difficulties in bringing them home to the accused. None of these reasons appear on the record, nor as I say does the record show that the District Judge considered any reasons before adopting the course he did. However we are prepared to proceed with the matter on the basis that it was a proper case to take into consideration the first three charges, on sentencing on the fourth charge. 3. The appellant when addressing us on this appeal against sentence has put before us allegations that he was not guilty. We have listened to him and find nothing in his allegations. We are not prepared to extend the time to give him leave to appeal against conviction. He was represented before the District Judge by a counsel. Admissions were made to all the facts constituting the offences. His own counsel in mitigation indicated that this defendant was one of the ring leaders. We therefore go on to consider the sentence imposed. 4. The value of the property on the fourth charge, which is the charge on which sentence was actually passed, was just under $40,000. The value in the first charge was just under $107,000. The property in the second charge was just under $57,000 and as to the third charge we do not know the value of the property. The appellant had a clear record. At the time of arrest he was employed as a semi-skilled labourer in the Housing Department. He is aged 24, has a wife and a daughter aged 5 and of course he was sentenced on a charge to which he had pleaded guilty. The learned District Judge passed a sentence of two years imprisonment. We consider that sentence to be well within the discretion he had, and leave to appeal is refused.
Representation: Appellant in person H.M. Sinclair, Crown Counsel, for the Crown/respondent |
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