HKSAR v. LAU WAN

HCMA769/2005

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO.769 OF 2005

(ON APPEAL FROM KCCC3473 OF 2005)

----------------------

----------------------

------------------------

J U D G M E N T

------------------------

1. The appellant pleaded guilty to two offences on 11 August 2005 and was sentenced to a total of 2 years and 6 months’ imprisonment by Ms A. Tse in Kowloon City Law Court.

2. The two offences were firstly, possession of offensive weapon in a public place, contrary to section 33(1) of the Public Order Ordinance, Cap. 245, and forgery of documents, contrary to section 111(1)(a) of the Road Traffic Ordinance, Cap. 374.  

3. The particulars of the 1^st charge are that on a certain day the appellant had with him offensive weapons, namely three knives, and the particulars of the 2^nd charge are that on the same day with intent to deceive, he had used a document, namely one pair of forged vehicle registration marks which were documents under this section.

4. For the 1^st offence, the statute provided that a person convicted of that offence shall be sentenced to imprisonment for not more than three years and for the 2^nd offence, the statute provided that the maximum penalty should be a fine of $10,000 and imprisonment for three years. 

5. The facts of the case were that on a certain evening a police car spotted a private car with the appellant and a driver inside which was acting suspiciously.  The car was instructed by the police car to turn into a side street but, after the car turned, instead of stopping, it increased its speed and sped away.  The police vehicle gave chase.  During the pursuit, two knives and an umbrella were thrown out from the private car.  Eventually, the private car was stopped by the police car.  The two males opened the door and attempted to escape but were stopped.  A 24-inch long knife and an 18-inch long knife were recovered from the ground and inside the car, a 18 inches beef knife with a paper sheath and a black balaclava type hood were found.  The private car was examined by the police and it was discovered that the original registration marks of the car in the front and at the back were both covered by the forged registration plates that the car was carrying at the time.

6. The learned magistrate was of the view that the case was very serious because she came to the conclusion that the appellant together with the driver were obviously intending to commit a serious criminal offence with the three knives and the balaclava, using the car with forged registration plates.  She adopted for the 1^st offence, the maximum of three years and reduced it to 2 years on account of the plea of guilty and, similarly for the 2^nd offence, she adopted the maximum of three years’ imprisonment and similarly reduced it to 2 years for the plea of guilty.  Six months of the sentence on the 2^nd count was ordered to be served consecutively to the sentence on the 1^st count, thereby making a total of 2 years and 6 months.  The appellant appeals against the sentences.

7. The facts of the case were no doubt serious and the magistrate was quite entitled to come to the conclusion that she did about the intentions of the appellant and the other male.  However, it is trite law that the statutory maximum sentence should be reserved for the worst possible case of its kind.  R. v. Harrison [1909] 2 Cr.App.R. 94.  An example of the working of this principle is to be found in the case of HKSAR v. Mok Chun Wing, HCMA727/2000, where for possessing 570,000 cigarettes which were subject to duty, the maximum sentence of 24 months’ imprisonment was reduced by Stock JA (sitting as an additional judge of the Court of First Instance) to one of 18 months’ imprisonment so as to allow some leeway for even worse offences.

8. On the hearing of the appeal, Mr Poon, for the appellant, relied upon section 92 of the Magistrates Ordinance, Cap. 227 which states that :

“Whenever any person is accused before a permanent magistrate of any indictable offence … the magistrate, instead of committing the accused for trial before the court, may deal with the case and convict the accused summarily, and on conviction may sentence the accused to imprisonment for 2 years and to a fine of $100,000.”

Counsel submitted that the sentences imposed were in contravention of this section in that the magistrate had used a starting point of three years’ imprisonment.  That submission does not take into account the proviso of section 92 which states that :

“Provided that nothing in this section shall affect any greater or lesser punishment specifically provided for in any other Ordinance.”

9. The proviso quite clearly allows a magistrate dealing with an indictable offence to impose a sentence in excess of two years.  The two offences in the instant case were clearly indictable offences.  Authority for the proposition that the proviso in section 92 enables the magistrate to use a starting point of more than two years is the case of The Queen v. Tong Yuen, HCMA1258/1988 where the Court of Appeal in considering the questions referred to it by a High Court judge ruled that if the offence were an indictable offence, the magistrate’s sentencing power would not be limited because of the proviso of section 92.

10. In answer to the question : “Can the sentence of a permanent magistrate for a single offence which is triable summarily only ever be in excess of two years imprisonment?”, the Court of Appeal answered it in the affirmative and said : “Yes, especially where a particular ordinance expressly so provides such as this one (the Firearms and Ammunition Ordinance, Cap. 238) or the public order ordinance.”  

11. The sentence of 2½ years’ imprisonment imposed by the magistrate was also within the terms of section 57 of the Magistrates Ordinance, Cap. 227 which states :

“Provided that where 2 or more terms of imprisonment imposed by a magistrate are ordered to run consecutively in whole or in part the aggregate of the said terms of imprisonment shall not, … in the case of a permanent magistrate exceed 3 years.”

12. The terms of imprisonment imposed by the magistrate were clearly within the law.  The question is simply whether she was justified to have employed in each instance the maximum statutory penalty. 

13. I will allow the appeal to the following extent.  On the 1^st charge, I am of the view that the proper starting point should be one of two years’ imprisonment which will be reduced on account of the plea to one of 16 months.  Similarly with the 2^nd charge, I am of the view that the starting point should also be one of two years, which again will be reduced on account of the plea to 16 months.  I will also order that six months of the sentence imposed on the 2^nd charge be served consecutively to the sentence on the 1^st charge, thereby making a total sentence of 22 months.  The appeal is allowed to that extent.