ATTORNEY GENERAL v. TSE ON

IN THE COURT OF APPEAL

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JUDGMENT

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McMullin, V.-P. :

1. This is an application by the Attorney General for review of sentence. The respondent, TSE On; was tried in the District Court with a number of other persons on a number of charges relating to offences of dishonesty. He faced five counts of burglary and related charges of handling stolen goods. He was convicted upon three of those charges. These were respectively the first, the fourth and the eighth charges. Each of them related to the entering of premises and removal therefrom of plastic material. There were three separate premises and the first charge related to the 17th of June, the fourth charge on the 14th of July and the eighth to the 27th of July 1984. In each case he was charged with carrying out those offences in company with other persons. The total value of the goods stolen was about $100,000.

2. The District Judge imposed an immediate custodial sentence of 9 months on the first charge and sentences of 18 months to run concurrently on the fourth and eighth charges, both sentences suspended for a period of two years.

3. It must be said that in choosing this manner of sentencing, the District Judge was exercising what might be thought to be considerable common sense and care. He had before him a probation report which was distinctly favourable to the respondent. That report, having given a favourable account of his family circumstances and his upbringing, went on to say that on the information before the Probation Officer the respondent had become unfortunately involved with a person who was the leader in the affair. The respondent had been living with his sister and the cause of his downfall, according to that report, was that he had left those premises and fallen in with bad companions.

4. The District Judge said,

"I was tempted to impose a non-custodial sentence and give this young man a chance.

I was afraid that sending him to prison for a long term may tend to make him into a recidivist."

He went on to say that these were serious offences and having regard to the fact that there is no power under the law in Hong Kong to partially suspend sentence as may be done in the United Kingdom, he imposed the suspended sentence in order, as he put it, to provide an extra incentive for the respondent to stay out of trouble after he had served this immeidate custodial sentence.

5. Mr. Ricketts, who appears for the Attorney on this application, has very fairly informed Us that the Attorney has considerable sympathy with the approach of the District Judge, but he points out that these sentences are in breach of the principle established in the case of Sapiano ⁽¹⁾ decided in the Court of Appeal in England.

6. In that case a woman was found guilty on three counts of receiving stolen property. The Deputy Chairman of the Middlesex Area Quarter Sessions imposed a sentence of 9 months' imprisonment in relation to one of those offences. He then imposed suspended sentences of 9 months concurrent with each other and consecutive to the "effective sentence" for the other two offences. The learned Lord Chief Justice says, at page 675:

"The court is satisfied that that is a wrong sentence. Wrong in two respects, first, that is really against the spirit and intention of the act because the main object of a suspended sentence is to avoid sending an offender to prison at all. Secondly, it is wrong because in many circumstances it just will not work. The 9 months suspended might only result in imprisonment in, say, the last three months of the period of suspension by which time the 9 months is subject to the immediate imprisonment might well have been served."

7. Mr. Ricketts relies in particular upon the first of those observations as establishing the general principle that this manner of sentencing is wrong.

8. The second point made by the learned Lord Chief Justice would seem to be that the 9 months suspended sentence not having been suspended for any specific period would commence running at the end of the immediate custodial sentence and might therefore be almost expired if the defendant came shortly thereafter before the court. This consideration would not apply necessarily in the present case where these suspended sentences were of 18 months to run consecutively to the immediate custodial sentence". That part of the observations of the learned Lord Chief Justice is no t, what we are concerned with now. The general principle that it is wrong to impose immediate custodial sentences to run concurrently with suspended sentences is one which we think must apply in these courts as well.

9. In the subsequent case of Butters & Fitzgerald, ⁽²⁾ the principle in Sapiano was referred to and adopted by the Court of  Appeal in relation to facts which were distinctly more complicated than those in the case of Sapiano.

10. It is clear from both of these cases that this is a wrong practice whether the order is that the sentences are to run concurrently with or consecutively to an immediate custodial sentence.

11. In Butters case the judge, dealing with the case upon appeal - Mr. Justice Roskill, as he then was - pointed out that the principle laid down by the court in Sapiano was not laid down as a matter of law but as a matter of good sentencing practice. He went onto say:

"This Court desires to emphasize that there is no statutory bar upon passing concurrent sentences of imprisonment the one immeidate and the other suspended.  Nor is there any bar as a matter of law upon passing sentences of imprisonment one to follow the other consecutively, the one immediate and the other suspended."

But later he went on to say,

"It seems to this Court that in general, courts of trial should avoid 'mixing up' sentences which fall into different categories. It is in general bad sentencing practice to pass concurrent sentences of imprisonment the one immediate and the other suspended. But this Court repeats that that is a matter of practice and not a matter of law."

Although stated in that way as a matter of practice and not of law, it is a practice which we think must be adopted in this territory as well.

12. The principle in Sapiano has in fact already been involved in these courts- see magisterial appeal No. 17 of 1984, LEUNG Cheung-chung ⁽³⁾, where Mr. Justice O'Connor expressly relied on it.

13. In such cases as the present once it is decided that the case is one demanding an immediate custodial sentence the appropriate course is to acknowledge the necessity for custody by imposing concurrent custodial sentences on the other count's as well.

14. For these reasons we allow the application for review, we set aside the suspended sentences of 18 months' imprisonment and for those we substitute sentences of 9 months on the fourth and the eighth counts, these sentences to run concurrently with the sentence presently being served by the respondent on count 1.

(1)    (1968) 52 Cr. App. R. 674

(2)    (1971) 55 C.A.R. 515

(3)    Mag. App. 17 of 1984