Yuen Chuen v. The Queen
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CACC000692/1977
----------------- Coram: Trainor, J. Date of Judgment: 22nd July, 1977. ----------------- JUDGMENT ----------------- 1. The appellant in this case was convicted of being in possession of dangerous drugs contrary to Section 8(1) of the Dangerous Drugs Ordinance. He was convicted on his plea of guilty and was sentenced to six months imprisonment. One might think that the term of imprisonment imposed was not very long having regard to the previous record of the appellant. However, the appellant on the 20th February 1976 been convicted of burglary and escaping from lawful custody, and for each of those offences he was sentenced to one year's imprisonment to be served consecutively but suspended for three years. In addition, on the 13th December, 1976 he was conditionally discharged and bound over in the sum of $500 for two years for being a member of a triad society. When the learned magistrate in the court below convicted the accused for the offence with which he was then charged he activated the suspended sentence of two years in respect of the appellant's convictions on the 20th February, 1976 and at that no one could cavil, but he then proceeded to impose a penalty of one month's imprisonment to be served consecutively to the other terms of imprisonment as a penalty for breach of the bond that the accused had entered into on the 13th December, 1976 and, in addition, imposed a fine of $500 for that breach of bond and in default two months' imprisonment. 2. It was quite improper of the learned magistrate to impose any penalty for the breach of bond. Where a bond is breached the penalty is already built into it: the amount of the recognizance, in this case $500. 3. The learned magistrate in justifying the sentence of one month for breach of bond and the $500 fine purported to rely on decision of this court in HO Kam Shui v. the Queen an unreported case which was Criminal Appeal No. 1130 of 1974. 4. With great respect to the learned magistrate in my opinion he completely misinterpreted the decision in that case. In that case a person was given a conditional discharge and bound over in the sum of $250 be of good behaviour and to appear for sentence if called upon. When he appeared before the Magistrates Court on a fresh charge the existence of the bond was brought to the attention of the magistrate who imposed a sentence of six months' imprisonment for the offence for which the appellant had previously received a conditional discharge. That was a perfectly proper thing to do except that the extent of the penalty was decided by the magistrate taking into consideration the fact that the appellant had, since he was bound over, the opportunity of changing his way of life and did not avail of it. The Court of Appeal held that that was a matter that ought not to have entered into consideration of the learned magistrate as it arose subsequently to the binding over and it reduced the penalty from six months to one month. But that was not a penalty for breach of bond. That was a penalty imposed for the original offence. 5. In the circumstances of the case before me I allow the appeal to the extent of one months' imprisonment imposed for breach of bond and the fine of $500. However, I do order that the recognizance of $500 entered into by the appellant after conviction on the 13th December, 1976 be forfeited.
Representation: Appellant in person. Mr. Alderdice, C.C. for respondent. |