Tam Kun-shing and Others v. The Queen

CACC000875A/1974

IN THE SUPREME COURT OF HONG KONG

(APPELLATE JURISDICTION)

CRIMINAL APPEAL NO. 875 OF 1974

-----------------

-----------------

Coram: Full Court (Huggins, McMullin & Pickering, JJ.)

Date of Judgment: 24th January, 1975.

-----------------

JUDGMENT

-----------------

McMullin, J. :

1. The three appellants in this case appealed from the decision of a magistrate after a joint trial on several charges involving the theft of certain water pipes which they had attempted to steal by using a goods vehicle which had been taken without the authority of the owner. The third appellant, with whose cause we are at present concerned, was convicted with the others of the attempted theft of the water pipes. The appeal was, in the usual way, to a single judge of the Supreme Court. In the first instance all three appealed only against their convictions. At the hearing Mr. Sedgwick appeared for the third accused (the present appellant) and applied on his behalf for leave to appeal against sentence out of time. This was refused and the appeal against conviction of the first and second accused (who are not now appellants) were also rejected. The appeal against conviction of the present appellant was not disposed of, although we understand that it was not strongly pressed at the hearing of the appeal before the single judge, and this course was followed pursuant to the decision of the single judge to refer to the Full Court for its determination a novel point raised before him as to the rights of an appellant under Section 113 (1) of the Magistrates Ordinance Cap. 227. Briefly, the contention is that, although for many years the practice has been to oblige appellants to file separate notices of appeal against conviction and sentence and although that practice is reflected by the provision in the schedule to the Magistrates (Forms) Rules of two separate forms (Form 101 and Form 102), nevertheless, in the case of an appellant who has pleaded not guilty and has been convicted after trial, there is no necessity to do more than give notice of an intention to appeal against conviction within the stipulated time. Upon doing so, it is argued, all matters relating to both conviction and sentence are at large before the appellant court. The provision of a separate form for appeal against sentence is explained as being referable to Subsection 2 of Section 113 which provides the right of appeal against sentence in the case of a person who has pleaded guilty to the offence charged.

2. Section 113 is in the following terms :

Having had the benefit of a lucid and closely reasoned argument by Mr. Sedgwick it may be said without hesitation that the decision of this matter turns upon the interpretation of the word "Conviction" where it appears in that section.

3. In support of his main contention Mr. Sedgwick also relies upon the provisions of Section 119 of the Magistrates Ordinance in which the widest powers are given to the appellate court by way of confirming, reversing or varying the magistrate's decision. Those provisions have been considered by the Full Court in several decisions in recent years and it is apparent that there is some degree of judicial dissonance as to the extent of the powers conferred by paragraphs (d) and (e) of Section 119, formerly (d) and (e) of the Section 117. In none of those cases does the precise signification of the key terms in Section 113 (1) appear to have been directly debated. The courts in those cases were not asked to say what distinction in meaning, if any, exists between the separate phrases "conviction", "order" or "determination" and, more specifically, were not invited to find that the word "conviction" must, in the context of the section, be held to include the factual findings of the court, the formal declaration of the result of those findings and any sentence imposed pursuant thereto. In none of the four cases to which reference must now be made was the point directly argued that an appeal against conviction necessarily involves an appeal against sentence. However, in the three earlier cases in the sequence that proposition might be said to be lurking somewhere in the background inasmuch as the related but distinct question as to whether there is an inherent right in the courts to grant an extension of time for appealing, whether against sentence or conviction, was proposed on the footing of the contention that once an appeal against conviction was properly before the court permission might be given to raise the question of sentence out of time and vice versa if the appeal before the court was against sentence in the first instance. In the final case in the sequence the matter presently argued becomes almost explicit in that what was sought was a mere amendment to the existing memorandum of appeal against conviction to include an appeal against sentence.

4. In CHIANG Shu-cheong v. The Queen ⁽¹⁾ the appellant appealed against the conviction in a magistrate's court upon the charge of careless driving as a result of which he had been sentenced to pay a fine and his licence was endorsed. The appellate court reviewed the evidence and found that the appellant had not been reckless or careless but merely guilty of such an error of judgment as to amount to the offence of driving without due care and attention. The learned Chief Justice, in dealing with the appeal, thought that special reasons were disclosed which would justify him in not endorsing the appellant's licence. Crown counsel queried whether, in the absence of an appeal against sentence, it was open to him to consider the matter but the learned judge found his warrant in the wide terms of the section which at that date incorporated all the powers now conferred upon the court by Section 119 of the Magistrates Ordinance.

5. Four years later an appellant appealing against his conviction upon a charge of larceny for which he had been sentenced in a magistrate's court to a term of imprisonment asked Blair-Kerr J. who dealt with the appeal, to consider the question of his sentence also. The learned judge elected to treat this extempore plea as an application for leave to appeal out of time against the sentence. In refusing the application he relied upon the decision of the Court of Appeal in England in Paprika Ltd. v. Board of Trade ⁽²⁾. In that case the Court of Appeal was dealing with the provisions of Section 31(2) of the Summary Jurisdiction Act 1879 which is in terms closely similar to the present Section 114 of the Magistrates Ordinance (Section 112 at the date of Blair-Kerr J. 's decision) and Lawrence J. giving the judgment of the court found, in effect, that in the absence of an express power conferring upon Quarter Sessions the right to extend time for giving notice of appeal, there was no inherent power in the court to grant such leave. Blair-Kerr J. was also encouraged to this conclusion by recalling the maxim that the right of appeal is a creature of statute. Since a specified time for the lodging of an appeal was provided by certain ...(illegible) provisions in the Ordinance (provisions which correspond to our present Sections 105, 110 and 114) failure to comply with them should meet with no indulgence from the court. Although it would be difficult to say that this decision is not in direct conflict with the decision of Hogan C.J. in the earlier case it might be suggested that that result reflects the fact that - although both case the same practical question was being considered viz. should the sentence be disturbed? - the angle of approach in each case was radically different. Hogan C.J. was concerned to uphold the powers of the court to act of its own motion, within the limits of the powers described in Section 119, in dealing with any case upon appeal before it. The appellant in his case had not in fact solicited the assistance which he proposed to give. Blair-Kerr J. by contrast was concerned to establish the limits of an appellant's right to invoke the court's assistance. He was not concerned to deny that there might be an inherent jurisdiction in the appellant court to interfere either were it was clear on an appeal against sentence only that the conviction was on the face of it bad in law or on an appeal against conviction that the sentence was one which could not be imposed under the law. That is implicit in the manner in which he deal in his judgment with the decision of the Full Court in Reg. v. CHAO Tse-yun ⁽³⁾ a case in which the appellate court actually did quash a conviction on an appeal against sentence when it became apparent in the course of the appeal that the charge had been defective from the start. Nevertheless it must be observed that in the case before Hogan C.J. the sentence imposed had not been affected by any such radical defect and his interference can therefore not be explained as an exercise of the inherent power of any court to prevent injustice where the record discloses something in the nature of nullity.

6. All the cases referred to already were considered by Creedon J. in Criminal Appeal No. 250 of 1966 (unreported). In that case the appellant had been convicted of the attempted larceny of a bicycle and he appealed against the conviction within time. At the hearing of the appeal he sought leave to appeal also against the sentence. The learned judge recognised the conflict in authority with which he was confronted but he preferred to follow the opinion of Blair-Kerr J. and was drawn to the conclusion that the opening words of Section 117 (corresponding precisely with the present wording of Section 119), which read:

"any appeal to which Section 103 or 111 applies",

meant an appeal initiated by the appellant within the time prescribed and of which the court was therefore properly seised.

7. This manner of looking at the section was approved and adopted by the learned judge who sits as the president of the present tribunal, in the final case in the sequence, SO Tung-fuk v. The Queen ⁽⁴⁾. In that case, by way of variation upon the theme, it was sought to substitute for a notice of appeal against conviction, which though within time had stated no grounds, a notice of appeal against sentence which was out of time. Counsel argued that because the appeal against conviction was within time all that need be granted at the hearing was an amendment of that notice to include an appeal against sentence. The basis for this argument was that the appellant in presenting his appeal against conviction had done everything that the relevant provisions of the Magistrates Ordinance had required of him. Leave to amend appears to have been sought as though it were in some way equivalent to leave to supply further particulars. The substance of the argument was that once notice of "an appeal" had been given, albeit only an appeal against "conviction", the grounds could relate to both conviction and sentence. In a sense, therefore, the meaning of the word "conviction" was in issue but the matter was not put in the way it has been put by Mr. Sedgwick. Huggins J. declined to permit the amendment on the ground that such an amendment would have amounted to changing the whole character of the appeal and he said:

"Subsections (1) and (2) of S. 111 draw a clear distinction between an appeal against conviction and an appeal against sentence and it has always been the practice to file two separate notices of appeal where both conviction and sentence are challenged. Having regard to the power of the court to increase as well as to decrease a sentence it is in the interest of an accused that the distinction between appeals against conviction and appeals against sentence should be preserved."

He took the view that to grant such an amendment would be to exceed his jurisdiction. He also declined to extend the time for appealing against sentence, following in this matter the decision of Blair-Kerr J. in LI Kar-su v. Reg. Counsel then sought to persuade him to follow upon the line taken by Hogan C.J. in CHIANG Shu-cheong v. The Queen ⁽¹⁾ and he asked the court to use the wide powers of Section 117(e) [the present 119(e)], as it were of its own motion, though at the invocation of the appellant, if it should consider that the justice of the case demanded it. Rejecting this argument the judge said:

"It seems to me that S. 117(e) should not be construed so widely as it was in Chiang's case but it must be read together with paragraph (d) of that section. What the judge may vary is 'the magistrate's decision' and it seems to me that means the decision appealed from. In the present case the decision appealed from is the decision to convict and variation of the sentence would not be a variation of that decision at all."

By way of preliminary clearing of the ground it should be said that although at first sight the earlier of those passages might seem to be open to counsel's criticism, nevertheless we do not think that Mr. Sedgwick is right to take issue with the learned judge over the latter's reliance upon the difference between subsections 1 and 2 of Section 111(now Section 113) as showing that a clear distinction has always been drawn between appeals against conviction and those against sentence and as supporting the practice of obliging appellants to file two separate notices of appeal. While subsections (1) and (2) of what is now s. 113 do draw a clear distinction between an appeal against conviction and an appeal against sentence that does not, of course, mean (and the judge did not say) that that supported the practice of obliging appellants to file separate notices of appeal: the judge was well aware that the subsections dealt with different situations, which depended upon the plea of the defendant, and he said merely that the distinction was recognised by the Legislature and that the practice existed. It was the practice which indicated what interpretation had been placed upon the words "conviction, order or determination" in subsection (1) in the past and his view was that an appeal against sentence was an appeal against an "order" rather than an appeal against a "conviction" and that where it was desired to appeal (under subsection (1)) against both the "conviction" and the "order" separate notices of appeal were required. The practice of obliging two separate notices of appeal is undoubtedly of long standing and we must now consider whether Mr. Sedgwick's principal argument obliges us to conclude that there never was any good warrant for it.

8. We would say, in advance of dealing with his argument, that it is the only argument which could effectively dispose of the objection taken by Huggins J. to the invoking of the court's powers under paragraphs (d) and (e) of Section 119 to cure the case of an appellant who has not seen fit to appeal against sentence within the appointed time. It was his view that those powers were out in the hands of the appellate court only when the appellant had explicitly challenged the sentence in accordance with the established procedure and that they were not available in every case of an appeal against conviction when either the appellant or the court itself felt disposed to deal with the whole determination of the case by the lower court. If Section 113(1) does make an effective distinction between appeals against conviction and those against sentence then we do not think that the court's powers under Section 119 can be used for such a purpose. We would agree that the words "the magistrate's decision" in Section 119(d) should be restricted to the actual part of the decision against which the appeal is directed. We think that those very wide powers can be employed to rectify an error which has not been made the subject of any appeal only in cases in which the finding of guilty or the sentence imposed are seen ex facie to be incompetent. In such cases the court rightly moves of itself to rectify a fundamental error, ex debito justitiae, and so as not to permit itself to approve even tacitly a miscarriage of justice.

9. In the present case it is conceded that the decision must turn upon the meaning of "conviction" in Section 113(1). It is also conceded that this is a point which was not argued in any of the previous cases. Mr. Sedgwick's persuasive argument sets off from a point which must be taken to be likewise conceded by both sides that is to say that although sentence is not explicitly referred to in Section 113(1) it must be assumed that the Legislature intended that there is to be a right of appeal against sentence following upon trial and conviction. He then directed our attention to a number of authorities both judicial and academic to demonstrate that the word "conviction" itself has commonly been used to signify several different things in the criminal law. In Oaten v. Auty ⁽⁵⁾ Darling J. called it "a word of very uncertain meaning"; while in Burgess v. Boetefeur ⁽⁶⁾ Tindal C.J. said:

"the word 'conviction' is undoubted verbum aequivocun. It is sometimes used as meaning the verdict of a jury, and at other times, in its more strictly legal sense, for the sentence of the court."

There are also passages in Blackstone and in Burns Justices of Peace where the learned authors treat the word in a manner which would conduce to the same general result. Quotation is needless and it may be said that there was ample support for Mr. Sedgwick's argument not only in the places cited but even in the Magistrates Ordinance itself, a matter which was very fairly brought to our attention by counsel for the Crown. He referred us to several sections notably Section 71(1), Section 56(1) and Section 57 in which the word "conviction" is employed by the Legislature in such a manner as to equate it with the order of the court imposing sentence. Notwithstanding this Mr. Gall for the Crown adhered to the reasoning of Huggins, J. in Reg. v. SO Tung-fuk ⁽⁴⁾ and argued that Section 114 obliged an appellant to specify what part of the decision he was appealing against.

10. Mr. Sedgwick drew to our attention the fact that the law in Hong Kong relating to appeals against conviction after trial upon indictment makes a clear distinction between appeals against sentence and those against conviction. This is a convenient point of departure for consideration of the argument advanced, for it underlines the fact that no such distinction is made in Section 113(1), the only provision dealing with procedure following upon conviction after trial in a magistrate's court. What we have to consider is primarily the intention of the Legislature in that part of the section and, in accordance with the ordinary canons of interpretation, we must look for the answer in the immediate context of the section itself with such illumination as may be drawn from the legislation from which it has its origin. Section 113(1) is substantially a reproduction of Section 37(1) of the Criminal Justice Act, 1914. There is only one material and significant difference in the wording of the two provisions. The English Act provides that:

"Any person aggrieved by any conviction of a Court of Summary Jurisdiction ... may appeal from the conviction ..."

Section 113(1) provides that:

"Any person aggrieved by any conviction, order or determination of a magistrate ... may appeal ..."

Mr. Gall contended that this was a clear indication that the Legislature in providing a general right of appeal subsequent to conviction wished to distinguish between the finding of guilty, which would correspond to the word "conviction" and any subsequent order made consequent upon conviction, such subsequent orders being covered by the following words "order or determination". To this Mr. Sedgwick replies that those subsequent words should be regarded as properly referable to such civil or quasi-criminal orders as magistrates are empowered to make under the Ordinance and that they should be distinguished from orders made following upon the determination of a trial for a criminal offence. This consideration coupled with the admitted ambiguity in usage of the term "conviction" and further combined with the fact that the English subsection relies solely upon that term to supply what appears to be intended as a general right of appeal was sufficient, in counsel's submission, to dispose of the matter in favour of his interpretation. There is however another significant difference between the two provisions. There is nothing in the English section nor elsewhere in the Act equivalent to Subsection 3 of Section 113 of the Ordinance which is in the following terms:

It will be apparent that that provision makes a clear distinction between powers exercised by a magistrate in determining criminal charges and those exercised by him in determining matters other than criminal charges. The appropriation of the words "order or determination" to such non-criminal matters in that subsection would seem to be a clear, and one might even say conclusive, indication that those words cannot be held to cover only such civil or quasi-criminal matters where they appear in Subsection 1. If, therefore, something over and above that connotation was intended by the use of those words in Subsection 1 it seems altogether more logical to suppose that "conviction" was being restricted to its current ordinary and primary meaning of the court's finding upon the facts and that subsequent decisions or matters consequent upon the finding of guilty were intended to be covered by the subsequent words.

11. This view of the local legislation is reinforced by a consideration of the way in which the Legislature in England has dealt with these matters both before and after the passing of the Criminal Justice Act, 1914.

12. At that date in England it would appear that an appeal against conviction in a court of summary jurisdiction necessarily included an appeal against sentence since no other provision then existed to allow for an appeal against sentence where the conviction followed a plea of not guilty and a trial. Prior to that the Legislature, in creating the more limited right of appeal given by S. 19 of Summary Jurisdiction Act, 1879 appears to favour the same use of terms since, although it refers to a "conviction or order of a court of summary jurisdiction", the word "order" is, by the context, clearly intended to cover orders other than orders made pursuant to the trial of an offence. No reference is made to sentence as distinct from conviction in that section. Notwithstanding this, Section 31 of the same act, which establishes the procedure upon appeal, refers to the right to appeal to a court of general or quarter sessions against "a conviction, sentence, order, determination or other decision of a court of summary jurisdiction ..." Whether or not at that date it was possible to appeal against conviction without ipso facto appealing against sentence (and probably it was not since the appeal was conducted as a trial de novo) it would seem - from this provision - that it was possible, in cases where the plea had been not guilty, to appeal against sentence without appealing against conviction.

13. The ambiguity of this usage was removed by later legislation in England; most comprehensively, perhaps, by Section 36 of The Criminal Justice Act 1948 which in para. (a) of Subsection 1 gives for the first time a right of appeal against sentence after plea of guilty and in para. (b) of the same Subsection provides that the person convicted may appeal: "in any other case, against the conviction or sentence, ... etc." This is a clear illustration of the modern usage whereby the sentence and the conviction are expressly distinguished.

14. The conclusion, there fore must be that it is necessary for a convicted person to indicate clearly what part of the decision of the magistrate he proposes to appeal against. This conclusion is further supported by the consideration (resorted to by Huggins, J. in Reg. v. SO Tung-fuk ⁽⁴⁾) that if an appeal against conviction were held in every case to include the question of sentence the appeallant who did not wish to appeal against sentence might be inhibited from pressing his appeal out of fear of the court's interference in the event that his appeal against conviction should fail. It may be that Form 101 in the Schedule to the Magistrates Rules does require modification but that is not a matter which affects the substance of the appeal. However equivocally the word "conviction" may be used in other parts of the Ordinance we think that the interpretation which we have given to it in the context of Section 113 is the one which best serves the intention of the Legislature no less than the practical administration of the criminal law. The application for leave to appeal against conviction not having been pressed it is dismissed and for the reasons we have given we are unable to hear Mr. Sedgwick upon sentence.

Representation:

(1) (1962) H.K.L.R. 595.

(2) (1944) K.B. 327.

(3) (1963)H.K.L.R. 121.

(4) (1967) H.K.L.R. 150.

(5) (1919) 2 K.B. 283.

(6) (1) 7 Man. & C. 481.