THE QUEEN v. HO LIN KAU

TRAINING CESTRES ORDINANCE CAP. 280. RELEASE SUBJECT TO SUPERVISION NOTICE. OFFENCE OF FAILING TO COMPLY WITH REQUIREMENTS OF SUCH NOTICE. FAILURE TO COMPLY WITH COMMISSIONERS ADDITIONAL REQUIREMENTS - EFFECT IN LAW. "AUTREFOIS CONVICT". "NEMO DEBET BIS VEXARI".

BETWEEN

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JUDGMENT

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1. HO Lin-kau aged 23 years appealed originally only against his sentence of 4 months imprisonment imposed by a Principal Magistrate for an offence contrary to s.5(1A) of the Training Centres Ordinance Cap. 280.

2. That section provides:

"5(1A)

A person who fails to comply with any requirement for the time being specified in a notice given to him under subsection (1) shall be guilty of an offence, and shall be liable on conviction to a fine of $5000 and to imprisonment for 12 months."

Subsection (1) of the same section reads: -

"5(1)

A parson after his release from a training centre and until the expiration of 3 years from the date of his release may be subjected to supervision by such society or person, as may be specified in an notice to be given him by the Commissioner on is release, and shall, while under supervision comply with such requirements as may be so specified."

The basis of an offence is therefore that the Accused must (i) have been released from a Training Centre and (ii) at that time have been given a notice and (iii) that notice must have specified supervision by a society or person and (iv) the Appellant must have failed to comply with that specified requirement.

3. The Appellant had pleated Guilty to the offence and the facts are, as far as can be seen from the Report of the After Care Officer dated 6.12.85 that the Accused has been in trouble since 1979. After a series of offences he was originally convicted on the 14th October 1982 and sentenced to be detained in a Training Centre, on two Burglary counts. He was released on 31.5.1984 on 3 years statutory supervision. The report does not specify the conditions of the Notice and does not refer to his being "given" a copy. There was originally no copy with the appeal papers and as far as can see none was put before the Magistrate although it appears that the Police had a copy, from reading the Brief Facts of the case put before the Magistrate.

4. The Notice is partially prescribed by the Training Centres Regulations made under s.10 of the Ordinance and Form 2 requires the completion thereof by the insertion of various particulars, it reads as follows:

"To:
Description of inmate ............................................... Description of Supervising Society or person ............TAKE NOTICE that you .............................. upon your release from .......................... Training Centre shall become subject to supervision by ........................................... until the ............ day of ............ 19.... and during such period of supervision you shall comply with the following requirements:-
	.................
	.................
Dated                             "

No element of supervision is thus built into the notice nor any special condition. Supervision is at the discretion of the Commissioner and remains to be specified by him.

5. On the 14th November 1984, that is within 6 months of his release, the Appellant was arrested, charged and tried for theft, of which he was duly convicted on the 8th August 1985 and sentenced to 12 months imprisonment.

6. As a result o?that subsequent conviction the Commissioner of Correctional Services considered the Appellant to be in breach of his statutory supervision notice in that he "had failed to lead a law abiding and honest life".

7. He was therefore charged

"that being a person released from Cape Collinson Correctional institution and against whom a supervision order has been made you did during the currency of such order fail to comply with the condition of the said order, did not lead a law abiding and honest life, as a result you were convicted of 'Theft' on 8.8.85 at Tsuen Wan Magistracy."

8. I have now had the benefit of seeing a copy of the notice and that a general requirement requiring the Appellant to "lead a law abiding and honest life" was inserted in the Supervision Notice as a printed requirement No.4, but it does not appear that the magistrate had one before him.

9. In any event failure to lead a law abiding and honest life does not appear to me to be also a failure to comply with any requirements of s.5(1).

10. There is a proviso to s.5, enabling the Commissioner to modify any of the requirements relating to supervision, but the subsection creating the offence, s.5(1A) relates to breach of the requirements as to supervision, nothing else constitutes an offence.

11. Therefore even if the Appellant was lawfully subject to the general additional requirement requiring him to "lead a law abiding and honest life" that provision and any breach thereof did not constitute an offence contrary to s.5(1A) of Cap. 280.

12. Then the Appellant was in effect being put in jeopardy twice for the sane offence - namely "Theft", for which he had already been convicted and sentenced and which was the substance of the "dishonest" life for which he was charged.

13. A plea of "autrefois convict" was open to him on the facts of the particulars in the charge but he was unrepresented and can hardly have been aware of such recondite matters, and the onus lying on him to prove such a plea; "nemo debet bis vexari pro eadem causa" clearly applied, however in my judement on the true basis of the charge.

14. And then the effect of (i) the conviction for Theft on 8th August 1985 and (ii) the conviction appealed against would each automatically result in the extension of the period of supervision, it being extended by suspension, until the expiry of both the consecutive sentences; that in itself result in a further penalty; so that for the offence of Theft this appellant has suffered two consecutive prison sentences and 2 periods of (extended) supervision.

15. For all those reasons 1 adjourned the appeal ac that the Appellant could obtain legal aid and subsequent thereto Mr. Aiken was instructed on his behalf and appeared on the adjourned hearing to apply for leave to appeal out of time against conviction. The Crown raised no objection and I granted leave.

16. On the subsequent hearing Mr. O'Mahony for the Crown had procured and produced to me a copy of the supervision notice of the 31st May 1984 upon which this conviction was based. This snows and shows, in addition to the specific requirement of supervision by, in this case the After Care Section of Cape Collinson Institution, no less than 8 extra requirements. I must set the Notice out in full, and observe that the requirements 1-8 printed in the form are not part of the statutory form which I set out earlier in this judgment

"FORM 2

Training Centres Ordinance

(Chapter 280)

Supervision Notice

17. To

Description of Inmate Registered 2-39296 HO Lin-kau Description of Supervising After-care Section Cave Collinson Correctional Institution Society or Person TAKE NOTICE that you  HO Lin-kau upon your release from Cape Collinson Correctional Institution shall become subject to supervision by After-care Section, Cape Collinson Correctional Institution until (1) the 30th day of May 1987 and during such period of supervision you shall comply with thefollowing requirements:-

(1)	You shall place yourself under the supervision, of a supervising officer nominated for this purpose and any other officer replacing him from time to time.
(2)	You shall meet with your supervising officer in accordance with that officer's instructions.
(3)	You shall inform Your supervising officer at once of any changes in your home and office addresses or any employment particulars including dismissals.
(4)	You shall lead a lass-abiding and honest life.
(5)	You shall not travel outside Hong Kong without the prior permission of your supervising officer.
(6)	You shall reside at an address approved by your supervising officer.
(7)	You shall undertake only such employment as approved by your supervising officer.
(8)	You must meet with your supervising officer at least once a month.

18. Date this 31st day of May 1984

19. Note: (1) Three years from the date of the inmate's release."

20. Mr. Aiken founds his submission basically upon the fact as I have related that this Appellant was in reality sentenced twice for the same offence. With that I agree and that would be sufficient to support the appeal but having seen the notice in the standard form I have no doubt that the legislature did not intend the Appellant to be liable to 12 months imprisonment for a breach, e.g. of Requirement No.8 - failing to meet his supervising officer once a month.

21. The printed additional requirements are in my view matters which would lead and should only lead to the Appellants recall pursuant to s.5(2) of Cap. 280 for breach of a "requirement" of his supervision notice.

22. For the reasons I have already given and in spite of Mr. O'Mahony's doughty submission to the contrary, I have come to the conclusion that on a proper reading of s.5(1) of Cap. 280 there is no offence created by s.5(1A), other than the supervision provision. Were the breach of those other minor matters such as No.8 in the notice to which I have referred to be the foundation of a criminal offence, I would have expected the Legislature simply to have inserted the word "other" in the last sentence of section 5(1) to read:-

"And while under supervision to comply with such OTHER requirements or may be so specified".

23. There was not only patently double jeopardy here but there was no offence committed by this Appellant, so he must therefore be acquitted, I his conviction therefore is quashed and the sentence of 4 months imprisonment set aside.

24. Whether the Commissioner for Correctional Services wishes to recall him pursuant to s.5(2) of Cap. 280 must be a matter for him to decide.

25. Dated this 1st April, 1986.

26. Delivered by me