THE QUEEN v. KONG CHEUK-CHI

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H E A D N O T E

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IT IS WRONG IN PRINCIPLE TO INCREASE A TARIFFF SENTENCE BECAUSE THERE HAS NOT BEEN A PLEA OF GUILTY

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY CRIMINAL APPEAL NO. 721 OF 1989

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J U D G M E N T

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1. This was an appeal against a sentence of eighteen months imprisonment for an offence of using another person's identity card contrary to Regulation 12(3) of the Registration of Persons Regulations, Cap. 177.

2. The learned Magistrate acknowledged in his reasons for sentence that the tariff sentence for this offence on a plea of guilty is fifteen months. He then went on to say that he "considered eighteen months imprisonment as appropriate to this case where the defendant had denied the charge."

3. It is quite correct to state the "tariff sentence" as being one of fifteen months, but it seems to me to offend against the normal principles of sentencing to increase that tariff because the appellant did not plead guilty. As is stated at p.50 of the Second Edition of D. A. Thomas on the 'Principles of Sentencing':

"A plea of guilty may properly be treated as a mitigating factor, indicating remorse, and will justify a reduction in the sentence below the level appropriate to the facts of the offence; but the defendant who contests the case against him, while not entitled to that mitigation, may not be penalised for the manner in which his defence has been conducted by the imposition of a sentence above the ceiling fixed by the gravity of the offence."

4. Though specifically relied on by the learned Magistrate I do not think the case of Lau Chung Kwan Mag Appeal 796 of 1986 is authority for what he did. In that case Clough, J. A. Delivering the judgment of the Court said this:

"Furthermore, in accepting O'Connor J's view that 15 months imprisonment is normally a proper sentence for the offence under regulation 12(3) where the offence is committed by an illegal immigrant in circumstances such as those pertaining in the present case, we do not intend to exclude any special factor such as strong humanitarian considerations which might make a case exceptional so that the normal sentence would be inappropriate."

5. A tariff sentence normally deals with a situation after trial.  Mitigation, including a plea of guilty, might reduce the tariff sentence. But a tariff sentence, that is after all sentence recommended to meet the "gravity of the offence", should not be increased because a plea of not guilty is maintained.

6. Lau Chung Kwan held to be correct a Magistrate's sentence of twelve months imprisonment for using another person's identity card. In that case the appellant had pleaded guilty. Furthermore, nowhere in that judgment does it say that the appropriate sentence is one of fifteen months imprisonment on a plea of guilty, which is what the learned Magistrate claimed it said.

7. I, accordingly, allowed this appeal to the extent that I reduced the sentence from eighteen months to fifteen months.