THE QUEEN v. YEUNG MAU LAM

Headnote

no legislation provides for an order on costs or compensation to be paid out of bail money

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JUDGMENT

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Silke, V-P:

1. This is the judgment of the Court.

2. On 28th October 1989 Yeung Mau Lam was convicted after trial before His Honour Judge Yeung in the District Court a total of 40 charges.  Charges 1 to 11 were offences of evasion of liability by deception; charges 12-18 were offences of obtaining property by deception; charges 19-29 were offences of forgery of a cheque; and charges 30-40 were offences of uttering a forged document. He was sentenced to imprisonment for five years on each of the charges 1-18 to be served concurrently, and to six months imprisonment on charges 19-40 to run concurrently with each other but consecutive to the period of imprisonment of five years. This gives a totality of five years and six months imprisonment. He was also ordered to pay costs of $40,000 and to pay $10,000 to each of the six victims. Having made the financial order he did the trial judge added that:

"Such sums to come out of the defendant's bail money."

3. Yeung's application for leave to appeal against conviction was heard on 19th and 20th March 1991 and, on 21st May 1991, those applications were refused.

4. Mr Nguyen who appeared for the applicant then addressed us on quantum of the sentences of imprisonment and on the financial order which the judge saw fit to make. He suggested that the totality of the sentence of the imprisonment imposed was excessive; that in similar District Court cases sentences ranged within the two to four year bracket and in the High Court the bracket is between two and six years.  In addition to that, he submitted that it was wrong to impose so heavy a costs order additional to the imprisonment. He took the point under s 72 of the Criminal Procedure Ordinance there was no entitlement for a trial judge to make an order that the financial penalties should come from the applicant's bail money.

5. This last submission caused us some concern and we required further argument on the matter.

6. On 12th November 1991 further submissions were made to us. We were referred to the provisions of s 72 of the Criminal Procedure Ordinance and s 23 of the District Court Ordinance. Further Mr Nguyen has drawn our attention to the provisions of s 51 of the Magistrates Ordinance and ss 53, 54, 67, 68 and 69 of that Ordinance. He indicates that a frequent order in the Magistrates court is to direct that fines imposed or compensatory orders made be paid from bail money of defendants. The normal practice is first to ask the consent of the defendant to this course being taken.

7. There is notning on the papers before us here to suggest that the applicant's consent was asked for.  Neither Mr Nguyen nor Mr McMahon, who appeared for the Crown and for whose assistance we are grateful, could draw our attention, despite their researches, to any statutory provision permitting such an order.

8. Both ss 72 and 73 of the Criminal Procedure Ordinance Cap 221 relate to the award of costs and the award of compensation respectively against a person convicted of an indictable offence. It is useful, for reasons which will become apparent, to consider their provisions.  If a costs order is made then payment of such order (s 72 (2)) may be made out of monies taken from a defendant on his apprehension or may be enforced by any person liable to pay or who may have paid in the same manner as the payment of costs ordered to be paid by judgment or order of the High Court in any civil action or proceedings.  If a compensation order is made then that amount is deemed a judgment debt due to the person entitled to receive the compensation from the convicted person and payment may be enforced in the same way as costs ordered under s 72.

9. Section 23 of the District Court Ordinance relates to the payment of a fine and provides that this may be enforced in like manner as any debt adjudged by the court to be paid or, if the judge thinks fit, by committal to prison of the offender for a specified period not exceeding 14 days.

10. There is no subsidiary legislation in the District Court Ordinance relating to criminal matters. While sections 72 and 73 of the Criminal Procedure Ordinance are not stated specifically to apply to the District Court they do, by virtue of the provision of s 79 of the District Court Ordinance - relate to that court's practice and procedure involving an order such as we have for consideration here.

11. Section 51 of the Magistrates Ordinance Cap 227 provided for the method of payments of fines and of money orders made relating to particular enactments, where the enactment in question makes no specific provision, by the issue of a warrant of distress for the purpose of levying such fine or order.

12. Section 53 provides for the committal to prison in default of sufficient distress. Section 67 refers to the enforcement as a "civil debt" and s 68 provides a scale of imprisonment for non-payment of monies adjudged to be paid. Section 69 gives the magistrate power to award costs and recovery is by distress procedures. Section 36 of the Ordinance contains special provisions as to the making of an order that the offender shall pay costs and the enforcement appears to be that a person in default may be punished with imprisonment for six months. Section 98 limits any compensation order to a sum of $5,000.   Section 101 provides that if a magistrate awards a pecuniary penalty or "amends", as it is called, for an offence and the same is not paid forthwith, he may, provided no express provision is made to the contrary in any other enactment, commit the offender to delete extra space prison for non-payment.

13. Therefore in our judgment neither the District Court nor a Magistrates Court has power to order that pecuniary penalties, be they fines, compensation orders, or costs be paid out of bail money.

14. It way frequently happen that the money deposited under bail conditions is not wholly that of the convicted person. When a person answers to his bail and the proceedings terminate, then he is entitled to receive the bail money back. This also, of course, applies to any surety. Should, however, compensation orders, fines or costs be ordered to be paid, and the convicted person is prepared to use some or all of his bail money for payment that is entirely a matter for him. If he should so indicate to the trial judge then no doubt arrangements can be made to see that his desires are carried out.

15. The "out of bail money" order here lacks  jurisdiction.

16. Turning now to the generality of this application for leave to appeal. These offences were a deliberate course of conduct and took place over a period of time. We accept that they were not all individual offences in the sense that they relate closely one to the other. That having been said a sum of $4.2 million was involved. They were mean offences defrauding small traders whose very livelihood depended on cash flow. While the totality of the sentence of imprisonment may be considered on the high side, in all the circumstances of this case, and those circumstances have been fully set out in the judgment of the court delivered by my Lord Power on 21st May 1991, it is not such as to warrant our interference.

17. We think that the costs order, given the severity of the sentence of imprisonment, the nature of the offences and the failure to carry out any enquiry as to means, was an excessive order. The order for compensation, which compensation has now been paid, we do not disturb. We were not seriously asked to do so by Mr Nguyen.

18. In the event we would  give leave; allow the appeal but only to the extent that we would quash the order as to payment of costs; any such sum paid should be refunded. The remaining penalties, including the period of imprisonment, will remain undisturbed.