ATTORNEY GENERAL v. KWONG KIN-WING

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY CRIMINAL APPEAL NO. 418 OF 1988

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J U D G M E N T

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1. This is an appeal by way of case stated from a decision of the Magistrate, Mr. H.F. Boa, who made an order for compensation under Section 98 of the Magistrates Ordinance, Cap 227, without first passing any sentence or other order.

2. The Respondent was charged with damaging property contrary to Section 60(1) of the Crimes Ordinance Cap 200. The particulars alleged that, without lawful excuse, he damaged a private car belonging to Mr. K.L. Lam. The Respondent pleaded guilty on 26th April 1988, and was ordered to pay compensation of $2,000 to Mr. Lam within 3 weeks. This sum has been paid. On 3rd May 1988 the Appellant applied for a review of the order, but the Magistrate refused the application.

3. The Appellant now appeals by way of case stated, and the question of law is - whether the Magistrate erred in law in making the order for compensation under Section 98 of Cap 227.

4. The case stated is as follows:-

"When the Respondent appeared before me on the 26th April, 1988, he pleaded guilty to the said charge of criminal damage. The admitted facts showed that, after the Respondent had accidentally driven his car into a lamppost whilst in the process of overtaking the victim's car, he (the respondent) alighted from his vehicle and kicked hard the nearside front door of the victim's car. The door was dented - and the cost of repairing it was $2,000 HK.

I thereupon convicted the defendant and, after I was informed that he had a clear record, I gave the Respondent the opportunity to address me in mitigation - the offer was declined. I then ordered, pursuant to s 98, Cap 227, that he paid the victim $2,000 as compensation within 3 weeks - coupled with a term of imprisonment for 10 days if the money was not paid. In so ordering, I took account of the Respondent's clear record, the fact that the offence was not particularly serious, and the possible provocation of the Respondent by the victim.

On the 3rd day of May, 1988, the Appellant's representative applied for a review date to be fixed, pursuant to s 104, Cap 227. I refused to grant a date for a review. In the circumstances of the case I considered that justice had been achieved by the order imposed.

The question of law arising on the above statement for the opinion of the Judge of the High Court therefore is:

'Whether I erred in law on the 26th day of April, 1988, in making the order for compensation, pursuant to s 98, Cap 227.'"

Section 98 of the Magistrates Ordinance Cap 227 reads as follows:-

"98. Where a magistrate makes an order under section 36(1) or convicts a person of an offence and passes such sentence (if any) as may otherwise by law be passed, he may, in addition to the order or sentence, order the offender to pay to any aggrieved person such compensation for -

(a) personal injury;

(b) loss of or damage to property; or

(c) both such injury and loss or damage,

not exceeding $5,000, as he thinks reasonable."

5. Mr. Grenville Cross for the Appellant argues that a trial is not complete until a sentence or other order has been passed. He cites R v. Grant⁽¹⁾ as an authority for this proposition.

6. Mr. Cross goes on to argue that under Section 98 an order for compensation is an ancillary order, and that it can only be imposed "in addition to" an order under Section 36(1) or to a sentence. As there was no order or sentence, he submits that the Magistrate had no power to make the compensation order.

7. Mr. Michael Wong for the Respondent argues that Grant's case is of limited application and that the judgment does not lay down any wide general principle, as suggested by Mr. Cross.

8. In R v. Grant the Divisional Court was considering whether quarter sessions could impose a sentence of corrective training in the case of an offender who had been committed for sentence under Section 29 of the Criminal Justice Act 1948 and who received notice of his previous convictions only after the hearing before the Justices.

9. This was a very technical point which the Divisional Court wanted to clarify for the benefit of quarter sessions.

The sentence quoted by Mr. Cross reads as follows:-

"If (the notice) is served 3 days before the prisoner is brought up for sentence, that is all that is required, and we cannot hold that in this case that the "trial" was the incomplete trial which took place before the justices, for, in our opinion, for this purpose, the trial is not complete until sentence has been passed, or the prisoner has been ordered to be discharged."

10. I think it is clear from this extract that the Divisional Court was simply interpreting the provisions of Section 29 of the 1948 Act. Moreover the words "for, in our opinion, for this purpose, the trial is not complete", shows that the Court was only considering whether the trial was not complete, for the purposes of that particular Act.

11. The case is not cited in Archhold, and I agree with Mr. Wong that it does not purport to set out any general principle that is applicable to this case.

12. As for Section 98 of Cap 227, Mr. Wong points out that the words "(if any)" appear immediately after "such sentence" in the fourth line of the sentence. So he submits that a compensation order may be made even if no sentence has been passed.

13. As for the second occasion where "sentence" appears in line 7, he argues that it must be qualified in the same way and that it should be read as if the words "(if any)" appeared immediately thereafter.

14. That is certainly one possible interpretation. But it is not clear. For if it was intended that a compensation order could be made whether or not any sentence had been passed, I think it would have said so e.g.:-

" ... he may, in addition to the order and whether or not any sentence has been passed, order the offender to pay ... such compensation ..."

15. Mr. Cross has attempted to solve the problem, by referring to the equivalent legislation in England. The relevant provision is Section 35(1) of the Powers of Criminal Courts Act 1973.

16. That originally read as follows:-

"35. (1) Subject to the provisions of this Part of this Act, a court by or before which a person is convicted of an offence, in addition to dealing with him in any other way, may, on application or otherwise, make an order (in this Act referred to as "a compensation order") requiring him to pay compensation for any personal injury, loss or damage resulting from that offence or any other offence which is taken into consideration by the court in determining sentence."

17. As then drafted, the section only empowered courts to make compensation orders in addition to dealing with an offender in any other way. So it showed that such orders were only ancillary to the main sentence and could not be made on their own.

18. In order to allow such orders to be made on their own, the words "instead of or" were inserted immediately before "in addition to" by the Criminal Justice Act 1982. So the relevant part of the section now reads:-

" ... a court ..., instead of or in addition to dealing with him in any other way, may ... make an order (... referred to as a "Compensation order") ..."

19. Mr. Cross argues that as our section does not include the words "instead of", it must be interpreted in the same way as Section 35(1) of the 1973 Act was interpreted, before it was amended in 1982.

20. Mr. Wong answers this by pointing out that the English section and the Hong Kong section are drafted so differently, that no assistance can be obtained from comparing them.

21. I think he is right.

22. Moreover, a further consideration is that the Hong Kong section was enacted in 1972 whereas the English section was enacted later in 1973. Further the pre-1973 English provisions were quite different. So the Hong Kong section is not based on any English provision and I do not think it helps to look at the English section when considering our Section 98.

23. I think it is in fact more helpful to consider:-

        (a) the previous Section 98; and

(b) the equivalent provision in Section 73 of the Criminal Procedure Ordinance, Cap 221.

24. As it happens both existing sections were substituted by section 4 of the Crimes (Amendment) Ordinance 1972.

25. As for (a) above, the previous section 98 of Cap 221 read as follows:-

"98. On the conviction of any person of any offence by which injury or loss to property has accrued, the convicting magistrate may order the offender to pay to the person aggrieved reasonable compensation not exceeding five hurdred dollars, in addition to any fine or punishment to which he is sentenced."

26. This shows quite clearly that the previous section only permitted compensation orders to be made in addition to the main sentence and that they could not be made on their own.

27. As for (b) above, the new section 73 of Cap 221 reads as follows:-

"73. (1) Where a person is convicted of an offence, the court may, in addition to passing such sentence as may otherwise by law be passed or making an order under section 107(1), order the person so convicted to pay such compensation ... as it thinks reasonable."

28. This section is much clearer than section 98 of Cap 227, and again it is quite clear that compensation orders are only ancillary to the main sentence, and cannot be made on their own.

29. The Criminal Procedure Ordinance applies to the High Court and the District Court. If the power of these courts to make compensation orders is limited in that way, it is difficult to imagine that, when the legislature enacted section 4 of the Crimes (Amendment) Ordinance 1973, it intended to give wider powers to magistrates than to the High Court and the District Court.

30. Further, seeing that the previous section 98 only empowered magistrates to make compensation orders as an addition to the main sentence, it is surprising that the new section was not much more specific if the Legislature really did intend to extend the powers of magistrates. If it was intended to enable magistrates to make compensation orders on their own, and not just as an addition to the main sentence, it seems very unlikely that the change would have been effected simply by inserting the words "(if any)".

31. It seems much more likely that those words were added to cover a situation where the magistrate has made an order that cannot be regarded as a punishment or sentence, e.g. a hospital order or a binding-over order. It may have been thought that the previous section did not empower the court to make a compensation order in these situations, and that may be why those cryptic words "(if any)" were added in the new Section 98.

32. But whatever was intended this section could usefully be clarified when the ordinance is next due to be amended.

33. Meanwhile I hold that magistrates never had and still do not have the power to make a compensation order on its own. If a magistrate proposes to make an order under section 98, it can only be made in addition to a sentence or other order.

34. Accordingly the answer to the learned Magistrate's question is Yes.

35. However the Magistrate's failure to pass a prior sentence or other order does not prevent the case being dealt with in the way he thought right. For it is of course possible to make a compensation order ancillary to an order under section 36, (which empowers the court to release an offender on a conditional or absolute discharge).

36. In view of the Respondent's clear record and the fact that the offence was "not particularly serious", Mr. Cross does not suggest that the learned Magistrate should have imposed a substantial sentence, nor does he suggest that justice was not achieved by the compensation order that was made.

37. So what Mr. Cross suggests I do now is to make an order under section 36 by virtue of my powers under Section 119(1)(d) of Cap 227. I agree.

38. Accordingly I allow this appeal to the extent of quashing the order for compensation and substituting therefore (1) an order under Section 36(1)(a), discharging the Respondent absolutely, and (2) an additional order under Section 98, requiring the Respondent to pay $2,000 compensation to Mr. K.L. Lam for the damage to his property.

(1) 1951 1 KB 500, 503