THE QUEEN v. TONG YUEN

Headnote

A permanent magistrate has jurisdiction under section 2C (2) of the Firearms and Appunition Ordinance to impose a sentence of up to 7 years imprisonment

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J U D G M E N T

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Hunter, J. A.

1. In this case three questions were referred to this Court by Duffy J on 9th March 1988 under section 118 (1)(d) of the Magistrates Ordinance, Chapter 227. They raise the question of the jurisdiction of magistrates under section 20 of the Firearms and Ammunition Ordinance, Chapter 238, when sentencing under section 20(2). They reveal something of a legislative lacuna.

2. The story is unhappily somewhat long it starts on 7th September 1987 when the appellant, Tong Yuen, was stopped in Kowloon and found to be in possession of an imitation firearm. He was accordingly charged with an offence under section 20(1) of be Firearms and Ammunition Ordinance. It was unfortunate that no mention was made in the charge sheet of section 20 (2) He was duly tried for that offence before the District Court in January 1988; was convicted and sentenced to 2½ years' imprisonment. On 1st July 1988 this Court allowed his appeal from that conviction upon the basis were offences under section 20 are triable only summarily, that the District Court had no jurisdiction, that that trial was a nullity and the matter had to go back to the magistrate. That happened on 28th September 1988. The North Kowloon Magistrate reheard the case. He likewise convicted the appellant, and on this occasion imposed a sentence of 21 months' imprisonment. In imposing that `sentence he claimed the jurisdiction to impose an extended sentence as provided for by section 20(2).

3. From both conviction and sentence he sought to appeal to Duffy J. The judge dismissed his appeal against conviction, but was troubles by the question of jurisdiction in relation to sentencing. He formulated three questions to be answered by this Court.

The questions are :

(1)Was the Magistrate correct to assume sentencing jurisdiction of up to seven years imprisonment as a result of section 20(2) of the Firearms and Ammunition Crdinance, Cap 238?

(2)Does section 20(2) of Chapter 238 supersede section 57 of the Magistrates Ordinance on the matter of the Magistrate's sentencing jurisdiction?

(3)Can the sentence of a permanent magistrate for any single offence which is triable summarily only ever to in excess of two years imprisonment?

4. The problem starts with section 20 of the Firearm and Ammunition Ordinance. This provides:

"20. (1) subject to subsection (2) and (3), any person who is in possession of an imitation firearm commits am offence and is liable to imprisonment for 2 years"

Subsection (3) them provides for specific defences available to the accused person

"(3) A person does not commit an offence under subsection (1) if he satisfies the magistrate that-

(a)at the relevant time he was under the age of 15; or

(b) he was in possession of the imitation firearm in his capacity as a person who deals in imitation firearms by way of trade of business...

(c)he was mot in possession of the imitation firearm for a purpose dangerous to the public peace, or of the committing an offence, or in circumstances likely to lead to-

(i)the commission of an offence; or

(ii) the possession, of the imitation firearm for a purpose

dangerous to the public peace, by himself or any other " person".

5. Under. (c) he has to satisfy the magistrate that he was in possession, for some legitimate or innocent purpose It was that defence which was advanced by the appellant and failed before the magistrate.

Subsection (2) has occasioned the problem

"(2)Any person who within 10 years of being convicted of an offence specified in the Schedule or of am offence under this Ordinance, commits an offence under subsection (1) is liable to imprisonment for 7 years".

The effect is this. If within 10 years of his conviction for the offence under subsection (1) of being in possession, he either has committed an offence under the Ordinance or any of the offences named in the schedule, he is liable to suffer an extended penality of imprisonment up to 7 years. There are many offences, specified in the Ordinance, providing for periods of imprisonment between life and 6 months. The schedule covers a very wide range of offences. They vary from robbery and rape at one extreme to common assault at the other. In this particular case, this appellant had committed two qualifying offences. On 13th September 1985 he was convicted of the offence of robbery. On 10th September 1986, he was convicted of the offence of assault occasioning actual bodily harm. Both of these are named in the Schedule.

6. In those circumstances the magistrate reasoned thus. This is an offence which is only triable summarily-the Court of Appeal have said so. If any content is given to section 20(2), I, as the trial magistrate, must have jurisdiction to impose a sentence of up to 7 years on a person who falls within the provisions of that subsection. The question which arises is whether that approach is right.

    somewhat curiously in this jurisdiction there is no section in the Magistrates Ordinance, or indeed any Ordinance, limiting expressly the sentencing power of a permanent magistrate trying cases summarily. There are only two sections in the Magistrates ordinance which have any bearing upon the problem. The first is section 57, which empowers an magistrate to impose consecutive sentences. The limiting provision is in the proviso, which reads

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

So that if he is himself imposing (I emphasise that word) on one occasion consecutive sentences and not making his sentence consecutive to an early sentence, there is a three-year limitation upon his jurisdiction. That is all. The section does not contain a limit upon individual sentences such as is found in section.82(2) of. the District Court Ordinance, Cap 336.

7. The other relevant section is section 92. This provides:

"Whenever any person is accused before a permanent magistrate of any indictable of except an offence specified in the first part of the Second Schedule, 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 or a fire of HK$10,000".

But there is a proviso :

"Provided that nothing in that section shall affect any greater punishment specifically provided for in any other Ordinance"

8. So that if this were an indictable offence, which it is not, that would not have limited this magistrate sentencing power becaus of the proviso. The other provision, section 57, simply does not apply.

9. It is popularly assumed, I believe, that there is a limit on the sentencing power of a magistrate exercising summary jurisdiction. That sort of limit is expressly to be fount, for example, in section 31 of the Magistrate court Act 1980 in England, where the limit is six months. We have no corresponding section. The belief that there is a limit arises, I suspect, from the fact that in many cases the ordinance creating the summary offence itself imposes a two-year limitation upon conviction That is by no means universal. Our attention was drawn this morning to three sections in the Public Order Ordinance, Chapter 245 which provide for imprisonment for five years on summary conviction.

10. Returning to these questions, it seems to us that the magistrate's view must he correct. Here is an Ordinance making careful provision for extended punishment. The offence is triable only summarily Content must be given to that subsection. There Is simply no other provision in any Ordinance to set against it or which can be said to limit or cut down the magistrate's' jurisdiction.

11. In the course of the argument We have all expresses doubts as to whether that was truly the legislative intention. The matter might be more conveniently managed in the future if provision was introduced into subsection (2) providing that that the extended penalty would arise only "on conviction on indictment". The jurisdiction would then much more natural by fit into the jurisdiction of District court. The Legal Aid provisions would automatically apply. These are a matter of some significance and seriousness to a person facing 7 years' imprisonment. Those provisions do not apply in the magistrate's court. But, most helpfully, the duty lawyer scheme was voluntarily extended to pick up this case. It does seem to us that that might be an amendment worth considering.

12. As the law now stands we can see no answer to the questions posed, other than that they should he answered affirmatively in each case. 1. Was the magistrate correct to assume sentencing jurisdiction of up to seven years impriosonment? The answer is Yes. 2. Does section 20(2) supersede section 57? Yes. Section 20 (2) is precise. Section 57 does not apply at all. 3.Can the sentence of e. permanent magistrate for any single offence which is triable summarily only ever be in excess of two years imprisonment? Yes, especially where a particular ordinance expressly so provides such as this one or the public order ordinance. Those are the answers we give to these questions.

13. That is the limit of our jurisdiction on this matter, but I feel constrained to add one more thing. The problem of sentencing imposed upon a court by section 2C(2) is unquestionably difficult and delicate. It is likely to he an novel experience for any sentencing judge. For my part, however, I cannot agree with the magistrate that it is necessary to adopt his strict mathematical approach, and apply a ratio of 7/2, or a multiplier of 3½ to some notional but not imposed sentence. I would respectfully suggest that the concepts of multipliers and multiplicands are best corralled in the area of the assessment of civil damages. I make those observations in the hope that they may possibly assist the future consideration of this case.

14. Having given those answers to the questions. I think it is not necessary to say more than that we now remit the matter back to Duffy J.