HKSAR v. Chan So Ching

[English Translation – 英譯本]

HCMA 430/2013

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 430 OF 2013

(ON APPEAL FROM FLCC 625 OF 2013)

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BETWEEN

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JUDGMENT

1.The appellant pleaded guilty at the Fanling Magistracy to one count of possession of offensive weapon, contrary to section 17 of the Summary Offences Ordinance[1], for which she was sentenced by a deputy magistrate (“the magistrate”) to two months’ imprisonment, suspended for 18 months, and a fine of $2,000.  She now appeals the sentence.

Facts

2.The incident took place at the Squatter Control and Clearance Offices of the Lands Department, where the appellant complained about an illegal squatter hut and expressed dissatisfaction with the failure of the relevant authority to take immediate clearance action against the hut.  She disregarded a staff member who attempted to explain to her on the relevant procedures, took out from her rucksack a fruit knife wrapped in newspaper, waved it at the staff member, and kept saying, “He cheated me.  Chop him to death.”  Subsequently, the police arrived at the scene and arrested the appellant.  She admitted that she had done the above acts on the spur of the moment.

Mitigation

3.The mitigation advanced on behalf of the appellant at trial[2] is in gist as follows: 

(1) The appellant is now 53 years of age, divorced, and residing with three adult daughters on whom the appellant depends.

(2) After divorce, the appellant and a man jointly funded the purchase of a sheet-metal hut, which was rented out to someone else.

(3) Subsequently, the appellant found that she had been deceived by that man.  She therefore requested the relevant authority to demolish the hut and sought to recover the rent.

(4) Feeling that the relevant authority was unable to assist her, she committed the present offence on the spur of the moment.

(5) The knife in question was meant to be given to a friend of the appellant’s and was not intended to be used to commit the offence.

(6) Nor had she ever meant or intended to injure anyone.

(7) She made an admission immediately upon arrival of the police.

(8) The sheet-metal hut has now been demolished and the appellant would never reoffend.

Reasons for sentence

4.In sentencing, the magistrate took into account the following:

(1) The maximum penalty for the offence is imprisonment for two years.

(2) The court would never allow anyone to solve problems by resorting to violence at will.

(3) The appellant committed the offence on impulse.

(4) But even if she had been deceived, it was not an excuse for using violence.

(5) The fruit knife used by the appellant was as much as 12 inches long.

(6) Although not physically injured, the staff member at whom the knife was pointed was subjected to unwarranted threat and harassment.

(7) The appellant’s barbaric behaviour had to be deterred. 

(8) The appellant was a first offender.

5.The magistrate adopted a starting point of three months and gave the usual one-third discount for the guilty plea and, taking into account the special circumstances of the present case, ordered that the two months’ imprisonment be suspended and also imposed a fine of $2,000 on the appellant.

Grounds of appeal

6.Mr. P.Y. Lo, Counsel for the appellant, puts forward the following grounds of appeal: 

(1) The penalty for the relevant offence is a fine of $5,000 or imprisonment for two years, and therefore the magistrate erred in imposing a fine and a suspended sentence.

(2) In any event, in view of the circumstances of the present case, a sentence of two months’ imprisonment, suspended for 18 months, in addition to a fine of $2,000, is manifestly excessive.

Respondent’s submissions

7.Ms. Jennifer Fok, Acting Senior Public Prosecutor for the respondent, submits that:

(1) The magistrate did not err in passing the said sentence which is permitted by the law.

(2) The sentence imposed is appropriate and not manifestly excessive.

Discussion and consideration

First ground of appeal

8.Section 17 of the Summary Offences Ordinance (“the Ordinance”), which is relevant to the offence in the present case, provides as follows:

“Any person who has in his possession any wrist restraint or other instrument or article manufactured for the purpose of physically restraining a person, any handcuffs or thumbcuffs, any offensive weapon, or any crowbar, picklock, skeleton-key or other instrument fit for unlawful purposes, with intent to use the same for any unlawful purpose, shall be liable to a fine of $5,000 or to imprisonment for 2 years.”

9.The first ground of appeal advanced by Mr. P. Y. Lo is based on the word “or” in the penalty provision towards the end of the above section.  It is submitted that the magistrate is only empowered to impose either, but not both, of the specified penalties.

10.In sentencing, the magistrate was of the view that section 97(1) of the Magistrates Ordinance[3] empowered her to impose both a suspended sentence and a fine at the same time.

11.Ms. Fok takes the same view, citing an English Court of Appeal case R v Leigh[4] in support.

12.Ms. Fok also points out that:

(1) Section 17 of the Ordinance provides that an offender on conviction shall be liable to[5] a fine or imprisonment to be imposed by a magistrate, but it does not impose upon the magistrate an obligation to sentence the offender by way of a fine or imprisonment.  The magistrate has a discretion to exercise the power conferred upon him by other Ordinances in passing a sentence.  

(2) The magistrate may, pursuant to section 109B of the Criminal Procedure Ordinance[6] and subject to the provisions therein, impose a suspended sentence;

(3) Section 97 of the Magistrates Ordinance confers upon the magistrate an additional power to impose a fine in lieu of or in addition to other ways in which a person convicted of an offence other than an indictable offence is dealt with.  Section 97 reads as follows:

“(1) Where a person is convicted of an offence other than an indictable offence the magistrate may, if he is not precluded from sentencing the person by the exercise of some other power (such as the power to make a probation order under section 3 of the Probation of Offenders Ordinance (Cap 298)), impose a fine in lieu of or in addition to dealing with the person in any other way in which the magistrate has power to deal with him, subject however to any enactment requiring the person to be dealt with in a particular way.”

13.The offence in the present case is not an indictable offence.  Whether or not a magistrate may sentence an offender pursuant to section 97 of the Magistrates Ordinance is subject to, inter alia, “any enactment requiring the person to be dealt with in a particular way”.

14.The Magistrates Ordinance does not explain what “a particular way” means.

15.Ms. Fok submits that “a particular way” means, for example, any person who is convicted of murder shall be imprisoned for life, as provided in section 2 of the Offences against the Person Ordinance[7], or any person who is convicted of possession of an offensive weapon in a public place shall be sentenced in the manner specified in section 33(2) of the Public Order Ordinance[8], as provided in section 33 of that Ordinance.

16.Mr. Lo, however, submits that the imposition by a magistrate of only either a fine or imprisonment is precisely “a particular way” of dealing with an offender as intended by the legislature.

17.In my judgment, even if the legislative intent of section 17 of the Ordinance is to confine the magistrate’s sentencing jurisdiction to the imposition of a fine or imprisonment, this is not a particular way of dealing with an offender.

18.In forming this view, I have taken into account sections 101G, 101F(a) and 101H of the Criminal Procedure Ordinance, which provide as follows:

Section 101G

“Where in any Ordinance a penalty is set out at the foot of any section or part thereof the same shall mean that any contravention of that section or part shall be an offence under such Ordinance punishable upon conviction by a penalty not exceeding the penalty so set out.”

Section 101F(a)

“Where in any Ordinance a penalty is prescribed for an offence under that Ordinance, such provision shall imply -

(a) that such offence shall be punishable upon conviction by a penalty not exceeding the penalty prescribed;”

Section 101H

“Where in any Ordinance more than one penalty is prescribed for an offence, the use of the word ‘and’ shall mean that the penalties may be inflicted alternatively or cumulatively.”

19.I recognize that under section 17 of the Ordinance, the maximum penalty for the relevant offence is a fine of $5,000 or[9] imprisonment for two years.  Does the word “or” serve any particular purpose? I think it does.  By way of example, the penalty provided in section 20 of the same Ordinance is “liable to a fine of $1,000 and[10] to imprisonment for 2 months.” 

20.In the absence of further explanation in statutory provisions or decided cases, the words “or” and “and” as ordinary words are plainly different in meaning.   Nor is there anything to suggest that the legislature intended these two words to be interchangeable in meaning.

21.This view was endorsed by Litton JA (as he then was) in R v Nguyen Bach Xuyen MA 833/1992.  That said, I notice that back at the time of that judgment, the word “or” was defined in the Interpretation and General Clauses Ordinance[11], but the definition no longer exists in the present Ordinance.  One of the reasons for judgment given by Litton JA was based on the interpretation of the word “or” in the then Ordinance.

22.This being the case, I consider that the penalty provided under section 17 of the relevant Ordinance is a fine or imprisonment, and that if the magistrate considers a fine appropriate, the maximum amount is $5,000, whereas the maximum term of imprisonment is two years if the magistrate considers a custodial sentence appropriate.

23.This does not mean that in dealing with the present offence, the court may only impose a fine or imprisonment and may not impose other sentences such as probation order, community service order or detention centre order.  The magistrate is permitted to make these orders pursuant to the respective Ordinances which govern them. 

24.Nevertheless, section 97 of the Magistrates Ordinance cannot be overlooked.

25.Section 97 is headed “General power to fine”.  A similar provision can be found in section 113A of the Criminal Procedure Ordinance.  In R v Nguyen Bach Xuyen, Litton JA also considered section 113A, pointing out that section 113A was different from the then section 97 of the Magistrates Ordinance in that the former, but not the latter, provided that the magistrate had the power to impose a fine in lieu of or in addition to other ways of dealing with an offender.  However, following legislative amendment, such a provision is now included in section 97.

26.Viewing the provision as a whole, it will be noticed that the legislative intent of section 97 of the Magistrates Ordinance is that, even though a provision which establishes penalties for an offence does not expressly provide for the imposition of a fine,  the magistrate may, where the conditions set out in section 97(1) are satisfied, impose a fine in lieu of or in addition to any other sentence which the magistrate is empowered to impose.  Under section 97(2), the other sentences that the magistrate is empowered to impose include imprisonment[12].

27.Section 97(3) of the Magistrates Ordinance provides that:

“(3) A fine imposed in exercise of the power under subsection (1) shall not -

(a) in the case of a special magistrate, exceed $50,000;

(b) in the case of a permanent magistrate, exceed $100,000,

except where a greater sum is specifically provided for in any other Ordinance.

(Replaced 13 of 1995 s. 62)”

The purpose is to set a maximum fine where the relevant provision provides for a fine without specifying an amount.

28.This indicates that, in enacting section 97 of the Magistrates Ordinance, the legislature envisaged that the penalties for the offence which the magistrate had to deal with might include a fine and/or imprisonment.

29.In my judgment, even though the intent behind the sentencing provision in section 17 is that the magistrate may only impose a fine or imprisonment, this statutory provision does not require the sentence to be passed in a particular way, and therefore, pursuant to section 97 of the Magistrates Ordinance, the magistrate is empowered to impose a fine as well as imprisonment at the same time. 

30.The first ground of appeal cannot stand.

Second ground of appeal

31.Mr. Lo complains that:

(1) the Magistrate placed too much emphasis on the need for a deterrent sentence and overlooked the fact that the appellant committed the offence only on impulse; 

(2) the Magistrate did not notice that the fruit knife being waved by the appellant was wrapped in newspaper;

(3) the person whom the appellant shouted about chopping to death was not a staff member at the scene, but a man who had deceived her and who was not at the scene.

32.Mr. Lo also submits that, in the circumstances, it was open to the magistrate to pass a lenient sentence by way of a fine.  

33.I consider the present case to be serious to some extent.  Although the fruit knife was wrapped, it must have caused people at the scene to fear for their personal safety.  Viewing the case in the round, in passing a suspended sentence a balance had been struck between the serious nature of the case and the appreciation of the fact that the appellant committed the crime on the spur of the moment.  Threatening a public officer in the execution of his duty is a matter which must be dealt with seriously, and the imposition of a fine does not adequately reflect the nature and the seriousness of the present case.

34.However, in the present case, having imposed a suspended sentence, is it necessary to also impose a fine?

35.In HKSAR v Ho Siu Man[13], Stock JA (as he then was) stated that in an appropriate case, a judge may impose a fine in conjunction with a custodial sentence where it is shown that an offender has profited from the offence.

36.In HKSAR v Yau[14], the Court of Appeal pointed out that it is not normally appropriate to impose a fine in conjunction with a custodial sentence, except for the purpose of recouping the profits gained by the offender from the offence. [15]

37.The abovementioned cases did not go so far as to hold that it must be shown that the convicted person has obtained pecuniary advantage from the offence before a fine can be imposed in addition to a custodial sentence.  However, those cases do indicate that whether the offender has profited from the offence is at least an important consideration.

38.In any event, in view of the nature and circumstances of the present case, I consider that a suspended sentence is adequate and it is not necessary to impose a fine in addition thereto.

Conclusion

39.I allow this appeal to the extent that the fine is set aside and the sentence of two months’ imprisonment suspended for 18 months is affirmed.

Ms. Jennifer Fok, Acting Senior Public Prosecutor of the Department of Justice, for the Hong Kong Special Administrative Region (the Respondent)

Mr. P. Y. Lo, instructed by Messrs. Fan, Wong & Tso, assigned by the Legal Aid Department, for the Appellant 

Translated by the Judgment Translation Unit of the Judiciary and vetted by

Mr. Edmund Cham, Solicitor.