Lui Fung Chun v. The Queen
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CACC000704/1971 IN THE SUPREME COURT OF HONG KONG (APPELLATE JURISDICTION) CRIMINAL APPEAL NO. 704 OF 1971 -----------------
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----------------- CRIMINAL APPEAL NO. 713 OF 1971 -----------------
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----------------- CRIMINAL APPEAL NO. 719 OF 1971 -----------------
----------------- Coram: Pickering, J. Date of Judgment: 29th November, 1971. ----------------- JUDGMENT ----------------- 1. Upon the recent hearing of some sixteen magisterial appeals, the suggestion was put forward by Mr. Caird of Crown Counsel that in eleven of the cases, as in Criminal Appeal No. 657 of 1971, no conviction had been properly recorded. I was not wholly convinced that this was the case but, ex abundante cautela, in the exercise of my powers under s.119(d) of the Magistrates Ordinance, I set aside the sentences, recorded a conviction and reimposed a sentence which, in the nine cases, the subject of this judgment, was equivalent to the original sentence, there being no other possible merits in these nine appeals. 2. On successive dates in the same week, Mr. Li and Mr. Marshall, both of Crown Counsel, appeared before me to represent the Crown upon further magisterial appeals and I invited the view of each upon the proposition put forward by Mr. Caird. Neither agreed with Mr. Caird's view, and I abandoned the somewhat cumbersome practice which I had initiated of setting aside the sentence in certain instances, myself convicting and reimposing the original sentence. 3. In no instance was the matter at all fully argued since, in each case, the point appeared to have been brought to counsel's attention only a very short time before the hearing of the appeals. 4. Mr. Caird's point, which may not be without substance, rests largely upon s.36(1) of the Magistrates Ordinance which permits a magistrate, who thinks a charge proved, to make an order discharging the offender either absolutely or conditionally with or without recording a conviction. From this, Mr. Caird argues, a finding of guilt is not the same thing as the recording of a conviction, and such phrases in a court record as "pleads guilty," "I find the charge proved," "I admit," "plea of guilty" unaccompanied by some positive assertion of conviction on the part of the magistrate, do not amount to the recording of a conviction - without which an offender should not be sentenced. There is authority in the case of R. v. Cole(1) for the proposition that a plea of guilty once recorded does not rate as a conviction, but only does so when the offender is in fact sentenced. Whether the mere act of sentencing amounts to the recording of a conviction, may or may not be another matter. 5. The point is one upon which, should it ever become necessary, the views of the Full Court, possibly with a second counsel appearing as amicus curiae, to present the opposite view to that urged by Mr. Caird, might be sought. 6. It is, however, within the powers of magistrates themselves to obviate any such necessity. Some magistrates adopt formulae, whether on a plea of guilty or after a finding of guilt, which leave no doubt that a conviction has been recorded. Examples of such phrases are "convicted," "convicted and sentenced to ......," "convicted on plea," "I find the accused guilty and convict". 7. I am well aware of the pressure under, and the speed at which, magistrates are frequently compelled to work, and these factors, no doubt, are responsible for the frequently attenuated form of a court record, especially upon a plea of guilty. If, however, all magistrates were to adopt the habit of employing the word "convict" or "convicted" where there is a plea or a finding of guilt and no decision not to record a conviction, all possibility of ambiguity would be removed. Representation: Appellant in person in each case. Caird C.C. for Crown. (1) 1965 2 A.E. 29 |