HKSAR v. Lau Chun Yin

HCMA842/2009

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO. 842 OF 2009

(ON APPEAL FROM ESCC 3785 OF 2009)

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Before : Hon McMahon J in Court

Dates of Hearing : 11 February, 1 and 16 March 2010

Date of Judgment : 16 March 2010

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J U D G M E N T

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1.This is an appeal against a compensation order imposed on the appellant.  The appellant had pleaded guilty to two theft charges whereby he had appropriated on the two charged occasions a total of $75,000 from the same victim. 

2.The appellant was sentenced in Eastern Magistracy on 25 September 2009 to 6 months’ imprisonment for each offence, to be served concurrently, and additionally, was made subject to a compensation order to the effect that he, in respect of the two offences, repay $75,000 to the victim within 12 months of his conviction, in default of which he was ordered to be imprisoned for a further 6 months. 

3.It is common ground that the magistrate was in error in ordering the appellant be further imprisoned in default of payment of the compensation order.  The magistrate himself very properly acknowledged this to be so in his reasons for sentence provided for the purposes of this appeal : the relevant authority is R v Tang Wan Yau, CACC554/1994.  The reasoning would appear to be that a compensation order, by section 73(2) of the Criminal Procedure Ordinance, is simply deemed to be a judgment debt due to the victim of the offence and there is no other provision which allows a magistrate (or a judge) to order imprisonment in default of payment of a judgment debt. 

4.That aspect of the magistrate’s order must therefore be set aside. 

5.This appeal is a rehearing : see Chou Shih Bin v HKSAR [2005] 1 HKLRD 838 at paragraphs 17 to 19.  I do not think it matters in that regard that an appeal is against sentence or, in this case, against a compensation order.  In Chou’s case the court was concerned with the construction of section 113 of the Magistrates Ordinance.  The construction of the court that any appeal brought under that section (as is this appeal) is procedurally a “rehearing” must be regarded in the context of section 113(1) referring to appeals brought against “any conviction, order or determination of a magistrate”.  I have no doubt that a sentence or compensation order fall squarely within that phrase and that I am therefore obliged to reconsider the matter anew. 

6.The appellant, at the time he appeared before the magistrate in the present case had already, in a previous case KCCC957/2009, been sentenced on 4 March 2009, in respect of three offences of theft, to 8 months’ imprisonment and ordered to pay compensation in the sums of $70,000 to the victim of those offences. 

7.Further on 12 June 2009, in respect of another case KCCC3304/2009, he was sentenced for an offence of deception to 6 months’ imprisonment, 5 months of which were to be served consecutively to the 8 months sentence of imprisonment imposed in KCCC957/2009.  

8.The total sentence of 6 months’ imprisonment imposed in the present case was ordered to be served consecutively, so far as only 4 months were concerned, with the sentences previously imposed in KCCC957/2009 and KCCC3304/2009. 

9.On 30 January of this year, after remissions allowed for good behaviour the appellant was released from prison. 

10.The magistrate in the present case when considering making the compensation order had considered the ability of the appellant to pay in accordance with the general principle enunciated in HKSAR v Chan Nai Keung, CACC284/2006 and HKSAR v Chan Sin Leung, CACC48/2006 arising from the judgment of Pain J in R v Miller (1979) 68 Cr.App.R. 56 at 57-58.  Although at the time of his sentencing the magistrate was aware the appellant was serving a term of imprisonment he took into account the appellant’s future ability to pay : see R v Townsend (1980) 2 Cr.App.R.(S) 328 and ordered that the appellant pay the victim $75,000 compensation on the basis that, as an individual who had worked as a sub-contractor prior to his imprisonment, he would be able to pay the $75,000 compensation within 6 months after his release.  Accordingly the magistrate, to achieve that, ordered the appellant to pay the compensation of $75,000 to the victim within 12 months of his sentencing.  

11.There was no inquiry as to the appellant’s earnings as a sub-contractor, or of his ability to pay the compensation ordered in the present case as well as the outstanding compensation ordered to be paid in KCCC957/2009 in the amount of $70,000. 

12.Following the appellant’s release from prison, having served his sentence, he has been unable to be located by those he had already instructed to represent him in this matter and there is no further information available as to his prospects of earning income at the time the present compensation order was made, which in my view is the appropriate time at which to assess the validity of the order (subject to the admission of any additional evidence in that regard).  In my view at that time, on the information available to the magistrate, the appellant had no money and no income and his prospects of earning sufficient future income so as to be able to meet the compensation order were so uncertain that no order should have been made.  That was particularly so given the outstanding compensation order of $70,000 imposed in KCCC957/2009. 

13.Accordingly the appeal is allowed and I set aside the compensation order made in the present case. 

Mr Raymond Cheng, SPP of the Department of Justice, for HKSAR

Mr Edward Fan Shun Yan, instructed by Messrs LCP,  assigned by DLA, for the Appellant