Ho Hoi-keung Alias Ho Keung v. The Queen
|
CACC000657/1971 IN THE SUPREME COURT OF HONG KONG (APPELLATE JURISDICTION) CRIMINAL APPEAL NO. 657 OF 1971 -----------------
----------------- Coram: Pickering, J. Date of Judgment: 28th October, 1971. ----------------- JUDGMENT ----------------- 1. In this case the appellant was sentenced to two terms of imprisonment in respect of offences upon which no convictions had ever been recorded. 2. However, there is nothing sinister about the case. The mistake was an innocent one and the appellant deserved the sentences imposed. It is well however, here to set out the facts, if only for the reason that such a mistake could so easily happen again. 3. The appellant was convicted, perfectly properly, by a magistrate on a charge of robbery and another charge of wounding and was sentenced to two years imprisonment on the first charge and to one year's consecutive imprisonment on the second charge. He appealed against that sentence and I dismissed his appeal. Immediately afterwards he appeared to appeal against a sentence of one month's imprisonment for going equipped for stealing and another sentence of nine months imprisonment for theft. Those two sentences were expressed to be consecutive to each other and consecutive to the three years which he was serving for robbery and wounding. 4. The sentences for going equipped for stealing and for theft were imposed by a different magistrate from the one who imposed the sentence for robbery and wounding. The sequence of events was that the appellant was conditionally discharged for twelve months on the 15th March, 1971 for going equipped for stealing. He was again conditionally discharged by the same magistrate, just one week later, for theft. This unusual situation arose probably because the magistrate in question, who, I am informed is now on leave, was told on each occasion upon which the appellant appeared before him, that the appellant had a clear record. In fact, at the 15th March, 1971, the appellant had five previous convictions namely two for dangerous drugs offences, one for robbery and two for theft. Had the magistrate been aware of this record it is extremely unlikely that the appellant would have been conditionally discharged on either occasion. 5. On the 2nd September, 1971, the appellant was convicted by another magistrate upon the charges of robbery and wounding to which I have already referred and was sentenced to a total of three years imprisonment. The magistrate in that case then ordered the appellant to re-appear before yet a third magistrate to be dealt with for breach of his recognizances in respect of the offences of going equipped for stealing and theft. As I have said, this learned magistrate sentenced the appellant to one month's imprisonment on the former charge and to a consecutive term of nine months' imprisonment on the latter, both such terms to be consecutive with the three years to which he had been sentenced for robbery and wounding. This third learned magistrate, who is the magistrate from whose decision the appellant now appeals, aptly says in his Statement of Findings, that in sentencing the appellant he had to bear in mind that, but for the error regarding his previous record, the appellant would very likely have been sentenced to terms of imprisonment upon each occasion instead of being conditionally discharged. On the other hand, the learned magistrate had to bear in mind that the appellant had just been sentenced to three years imprisonment and that any sentences which he might impose would, if they were to have any significance, have to be consecutive to that sentence. The magistrate resolved the problem by imposing the sentences of one month and nine months consecutive which were considerably lighter than the appellant would have received had he come before that magistrate in the first instance. 6. Unfortunately the learned magistrate failed to appreciate that the appellant had not in fact been convicted upon either of these charges by the first magistrate and the learned third magistrate did not himself record convictions. Section 36(1) of the Magistrates Ordinance Cap. 227 reads:
Section 19(3) of the same Ordinance reads:
A perusal of the record of the learned first magistrate establishes that when the appellant was conditionally discharged in respect of these two offences, upon neither occasion was a conviction recorded. Under s.36(1) of the Magistrates Ordinance this is, of course, a perfectly legitimate procedure but it does behold a magistrate before whom an offender conditionally discharged re-appears, and whether the magistrate be the original magistrate or not, to ensure that before any sentence is passed, a conviction has been recorded either by the original magistrate or by the magistrate later seized of the matter. 7. In the present case it was open to me to send the matter back to the learned magistrate but I adopted the simpler and more time-saving device of using my powers under s.119(d) of the Magistrates Ordinance. Since there had been sentences but no convictions, it followed that I had to allow the appeal but I thereafter recorded convictions in respect of these two offences and then sentenced the appellant to the same sentences which had been imposed in the absence of his conviction, by the magistrate. The effect, to the appellant, is, of course academic but the case illustrates the necessity for ensuring that a conviction has been recorded before any sentence is passed. Representation: Appellant in person Caird, C.C. for Crown. |