R. v. SIU KWOK PAN

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO. 629 OF 1996

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J U D G M E N T

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1. The appellant pleaded guilty to one count of theft. He was sentenced to four months imprisonment. There was a three-month term suspended for 18 months still pending. The learned Magistrate activated that and ordered that to run consecutively to the four months, making it seven months in total. At the time, when the learned Magistrate sentenced him, he was serving a six-month sentence in connection with yet another offence.

2. The brief facts of this present case are that the victim left his portable phone in an unlocked and unattended vehicle while he was making delivery elsewhere and it was taken by the appellant.

3. The learned Magistrate adopted a starting point of six months and reduced it to four months as a result of his plea but he activated the three-month sentence. The appellant is no stranger to this court. He had 12 previous convictions, nine related to drugs and three or four related to theft.

4. Counsel drew my attention to a number of events and submitted that because of these, the learned Magistrate should not have activated the three-month sentence. I think there is some substance in it. What happened was this. On 16th January 1995, the appellant was sentenced to three months imprisonment for theft which was suspended for 18 months. On the same day, in the same Magistracy before another magistrate, he was sentenced to nine months immediate custodial sentence for another theft. Presumably, he had finished his sentence and came out of prison but committed another or other offences. On 23rd January 1996, he was sentenced by the court for a dangerous drugs offence to six months imprisonment.

5. Looking at the events, it seems that there were three possibilities which could have happened. First, on 16th January 1995, he had two theft charges in the same Magistracy. Unfortunately, they were dealt with separately by two different Magistrates. I put no blame on the administration or anyone in the Magistracy. But had the two charges been dealt with together, I would have thought that no court would have sentenced him on one count of theft to an immediate custodial sentence and at the same time on another theft to a suspended sentence. That is, of course, contrary to the authority of the Court of Appeal in the A.G. v. Tse On [1986] HKLR 215 case. If the two charges had been brought before the same Magistrate, I am sure that the Magistrate would have dealt with them together. The three months suspended sentence would have been taken into account when imposing the nine months immediate custodial sentence. So that is the possibility.

6. Second, on 23rd January 1996, he was brought before the court on the dangerous drugs charge and sentenced to six months. At that time, the present case had already been brought before the court. I understand that it could be in the same court but that is beside the point. Two points can be made here : one, the present case could have been dealt with together with that dangerous drugs offence. This was not done. And two, the Magistrate who had sentenced him to six months on the dangerous drugs charge would have considered the possibility of activating the three months suspended sentence, which was imposed at about a year ago. Again this was not done. I must say that the Magistrate who sentenced the appellant on the dangerous drugs charge would have every good reason not to activate the suspended sentence because it was in connection with a totally different offence. However, the point is this : if on 23rd January 1996, the same Magistrate dealt with the dangerous drugs charge and the present offence together and was made aware of the suspended sentence, he might have imposed a sentence different from what he had done here.

7. Because of the special circumstances, it appears that if the present case and the dangerous drugs charge had been dealt with on 23rd January 1996, it is possible that a court would not have sentenced him to six months on the dangerous drugs charge, four months on the theft charge and at the same time activating the three months, making a total of 13 months as it now stands.

8. In the circumstances, I think it is rather a peculiar case. Activating the suspended sentence at this stage seems to me to be unjust to the appellant. In the circumstances, I would allow the appeal and set aside the activation.