Yeung To v. The Queen

CACC000824/1972

IN THE SUPREME COURT OF HONG KONG

(APPELLATE JURISDICTION)

CRIMINAL APPEAL NO. 824 OF 1972

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Coram: Leonard J. in Court.

Date of Judgment: 22nd December, 1972.

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JUDGMENT

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1. This is an appeal against a sentence that was imposed in the North Kowloon Magistracy on the 10th of November 1972. The appellant having been charged with theft of a cart was sentenced to six months' imprisonment for that offence. Previously, on the 8th February 1972 in North Kowloon Case No. 44184 of 1972 he had been found guilty of a similar offence when a suspended sentence of three months' imprisonment was imposed. Notwithstanding the leniency afforded to him on that occasion he was again appeared before a magistrate in North Kowloon on the 24th of February 1972, (again for stealing a cart) in Case No. 7947. The learned magistrate in Case No. NK 7947, when passing a sentence of three months' imprisonment, made the following note:

"Noted - defendant received suspended sentence for theft some two weeks prior to commission of this offence. Defendant convicted and sentenced to three months' imprisonment".

This note is clearly insufficient to comply with Section 109(c) of the Criminal Procedure Ordinance (Cap. 221) which enables a magistrate, before whom an offender is convicted of an offence committed during the operational period of a suspended sentence, to order that the suspended sentence shall take effect with the original term unaltered; to order that the sentence shall take effect with the substitution of a greater or lesser term for the original term; to vary the original order or to make no order with respect to the suspended sentence, but the Section lays down that the court shall make an order under paragraph (a) of the Subsection unless the court is of the opinion that it would be unjust to do so in view of all the circumstances which have arisen since the suspended sentence was passed including the facts of the subsequent offence and where it is of that opinion the court shall state its for reasons. The learned magistrate failed to do that in Case No. NK 7947. I can only assume that the learned magistrate intended to activate the suspended sentence for the original offence and decided to impose no sentence in respect of the offence then before him. If I am correct in that assumption then the learned magistrate in NK 44184 was wrong in activating the suspended sentence for a second time. In the course of his statement of findings the learned magistrate in NK 44184 of 1972 states:

"I can only assume that the Magistrate then dealing with the case was not informed of the suspended sentence."

This assumption is clearly unjustified as can be seen from the record in NK 7947. In all the circumstances of the case I consider that this appeal must be allowed in so far as the activation (possibly for the second time) of the suspended sentence is concerned. I therefore allow this appeal and order that the suspended sentence shall not be activated. I confirm the sentence of 6 months' imprisonment. It shall run from the date of conviction.

Representation:

Appellant in person.

Keil & Stapp for Respondent