THE QUEEN v. CHAN CHUN CHUNG

IN THE SUPREME COURT OF HONG KONG

APPELLATE JURISDICTION

Magistracy Appeal No. 84 of 1985

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BETWEEN

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REASONS FOR JNDGMENT

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1. The appellant was convicted on his own pleas of guilty of two charges of theft (A and C), and one of forgery (charge B). Charges A and B were in relation to a student travel card, the other concerned the theft of a Hang Seng Bank Cash Card.

2. For the theft charges, he was bound over in his own recognizance of $1,000.00 to be of good behaviour for two years, and no conviction was recorded. For the charge of forgery, he was sentenced to one month imprisonment suspended for two years, and the conviction was recorded.

3. He appealed against the sentence an the forgery charge on the ground that it was manifestly excessive in all the circumstances of the case, and/or was not the proper one and was imposed without consideration of the provisions obtained in section 109A of the Criminal Procedure Ordinance.

4. On the 4th March, 1985 I allowed the appeal, set aside the suspended sentence and substituted an order binding him over in the same terms as for the other two charges, end the conviction be not recorded. The order for costs was maintained.

5. I now give my reasons.

6. Mr. Sanguinetti, who argued the appeal for the appellant, submitted that as the appellant was well below 21, the provisions of section 109A which were mandatory in terms applied to him. Learned Crown Counsel, conceding that those provisions being clear and mandatory, felt that a sentence of imprisonment on a young lad of 19, there being no indication that the sentencing court had considered those provisions, did not sound proper.

7. In imposing the suspended sentence, the learned trial magistrate said:

8. Section 109A was considered by the Supreme Court in YEJNG Ka-wah & 4 others v. Reg., Criminal Appeal No. 357/70, where it was pointed out that the provisions of this section are not mandatory but directory only. In that case, the judge had expressly said that in view of the circumstances which he had set out that the only appropriate method of dealing with the young accused, who were under 21 years of age, was by way of imprisonment. HUGGINS, J. (as he then was) said,

"We think a judge (but rarely, perhaps, a magistrate, for he deals with cases which prima facie are not so serious that a summary trial is inappropriate) is entitled where the facts warrant it, he take the view that the serious nature of an offence so clearly overrides any considerations personal to the offender that he can properly exercise his discretion under s.109A without, first obtaining a probation officer's report."

It would therefore seem that a magistrates' court must give reasons for its opinion that no other method of dealing with the offender who is under 21 years of age is appropriate.

9. Such a process involves an exercise, which I think is ineluctable in view of the provisions of section 109A, of considering every way of dealing with him before imposing a sentence of imprisonment, and only where all the other methods are excluded a magistrate may properly say to himself : this is a case for imprisonment and the final question, it being a case of imprisonment, is immediate imprisonment required or can I give a suspended sentence–R. v. O'Keefe, (1969) 1 A11 E.R. 426.

10. With respect, there is nothing in the statement of findings to indicate that the learned trial magistrate had considered those other methods or what his reasons for excluding them were. If he went on the basis that the charge of forgery was "far more serious", as he clearly did, then Mr. Sanguinetti submitted that he was wrong, the proper approach being that set out in Reg. v. HO Chun-chau, Review Application No. 17/84, for the court to have regard to "the intention of the Legislature as indicated in the penalties provided and to measure the case before it against the kind of case capable of attracting the maximum penalty". Learned Counsel is clearly right when he pointed out that the maximum penalty provided for forgery being less than that for theft, the former is not the more serious of the two.

11. Two other cases were cited by Mr. Sanguinetti, both of shoplifting. In WONG Ming-yim v. Reg., Criminal Appeal No. 20/81, in which a sentence of a fine of $250,00 imposed on a school girl aged 15 was set aside and substituted with on absolute discharge, conviction was not to be recorded. In Reg. v. Mark, The TIMES of October 17, 1974 where the appellant aged 25, a pregnant housewife, not in work and had no means of her own and whose husband earned about £2,800 a year gross, was sentenced to concurrent terms of six months imprisonment suspended for two years fined £240 and ordered to pay £25 costs after she had pleaded guilty to three counts, the court held that the sentences were wrong in principle, grossly excessive and harsh.

12. Taking these matters into account I was of the opinion that the sentence imposed for the forgery charge was wrong in principle and excessive. I thought that the justice of the case required that it be brought into line with the sentence given on the other two counts.