ATTORNEY GENERAL v. WONG SEK SHING

Headnote

Sentence: Imprisonment/Fines: Generalised Sentences disapproved.

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J U D G M E N T

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Silke, V.-P.:

1. This is the judgment of the Court.

2. On 21st July 1988 Wong Sek Shing appeared for trial before Mr. L.C. Stretton in Central Magistracy. He pleaded guilty to two charges: the first: simple possession of a dangerous drug and the second: possession of apparatus fit and intended for inhaling of a dangerous drug. These are offences punishable under sections 8(1)(a) and 36(1) respectively of the Dangerous Drugs Ordinance, Cap.134. In each case statutory penalties of a similar nature are provided for.

3. The magistrate imposed a generalised fine of $750 and gave it as his reasons:

"I fined the defendant $750 treating both counts as one for sentence; noting when doing so that the offences were closely related and the prescribed penalties are identical."

4. The Attorney General with leave, and under the provisions of section 80(1)(a) of the Criminal Procedure Ordinance, Cap.221, now applies to this Court to review that sentence on the grounds that a generalised sentence is wrong in principle and/or contrary to law.

5. He contends, through Mr. Cross, that the magistrate ought to have imposed a specific sentence for each offence and, further, he erred in coming to the view, the two offences being so closely related and having identical prescribed penalties, that he was empowered to impose a generalised sentence. It was further submitted that such form of sentence has no recognised place in Hong Kong sentencing practice or procedure.

6. Let me at once say that we are indebted to Mr. Cross for his researches which were embodied in his helpful skeleton argument. Mr. Franklin, who appeared for the Respondent upon the instructions of the Director of Legal Aid, was unable to discover any authorities additional to those brought to our attention by Mr. Cross.

7. In the middle years of the 19th century, generalised sentences were common practice (see R.v. Powell (1831) 2 Barn and Adol 75; 109 E.R.1071) in respect of indictments containing multiple counts., In O'Connell v. R. (1884) E.R. 1061 Daniel O'Connell and others had been convicted upon an indictment containing a number of conspiracy counts. The general sentence passed was stated to be "for his offences aforesaid". On appeal some of the convictions were held to be bad. In the House of Lords, both Lord Denman and Baron Parke, for different reasons, doubted the correctness of the practice and made reference to the difficulties the then extant procedure by way of Writ of Error could cause.

8. In R. v. Castro (1881) 6 Anp.Cas. 229, Lord Selborune_. L.C. expressed approval of the doubts voiced by both those eminent judges.

9. Despite this, coming closer to the present day, generalised sentence were left unremarked upon in R. v. Hervey and Godwin (1940) 27 Cr.App.R. 146. Godwin, convicted on four counts, received a sentence of two years. The Court dealt with that sentence, which covered Godwin's convictions on two counts quashed by the Court of Criminal Appeal, by reducing the sentence on the remaining two counts to one of eighteen months.

10. More recently a man, Hastings, had been convicted upon an indictment containing five counts. The sentence passed was one of "four years corrective training". There was no reference to the sentence being concurrent. On appeal the conviction on the first count was quashed but the English Court of Appeal directed that there be "no alteration of sentence".

11. The Divisional Court, (Re Hastings (1958) 1 All E.R. 707) dealing with a Motion by Hastings that he be released from jail on the ground that no legal sentence had been passed on the remaining four counts, felt itself able to interpret sentence as being concurrent on all counts because the trial judge had used the plural of the word "fraud" - a word more applicable to the counts remaining. Lord Goddard, L.C.J. thought it "perfectly obvious" that the sentencing judge meant to pass a sentence of four years on each count in the indictment.

12. Lord Goddard at pare 711 concluded his judgment with these words:

"..... perhaps it would always be desirable for the court to use some words like 'on each count', or to say 'concurrent ....' to prevent this sort of question arising hereafter".

13. In the^. Practice Direction; Concurrent Sentences; (1962) 46 Crim.App.Rep. 119 Lord Parker L.C.J. had this to say:

"The attention of this court has been drawn to the fact that in many cases, when a prisoner has been sentenced on more than one count, only one sentence, say three years' imprisonment, is recorded on the indictment without indicating whether it is 'concurrent on each count' or otherwise. No doubt this is because the court in question has been concentrating on the total period of imprisonment appropriate and has omitted specifically to say that it is intended to be concurrent on each count. While in the absence of any reference to a sentence being consecutive it is no doubt intended to be concurrent, we think that this should, to avoid confusion, be expressly stated in the presence of the prisoner and entered on the indictment. Clerks of the Peace and Clerks of Assize should, therefore, in such a case consult the court before the prisoner leaves the dock and ask the court to state expressly that the sentence is concurrent on all counts, or as the case may be and then make the appropriate entry on the indictment."

14. In Lo Ying v. The Queen (1967) H.K.L.R. 471 the Court was dealing with a magisterial appeal where the appellant had pleaded guilty to nine charges and was sentenced only on the 1st, 2nd and 3rd. The sentencing magistrate had indicated that he was "taking into consideration" the 4th to 9th charges.

15. Pickering, J. (as he then was) said at p.473:

"Having pleaded guilty to the 4th to 9th charges as well as to those in respect of which he was actually sentenced, the appellant was entitled to be sentenced on the 4th to 9th charge in order that his position for the future in regard to those charges should be crystal clear. There is authority for the view that a plea of guilty does not rank as a conviction until the offender is sentenced (See. R. v. Cole [(1965) 49 Cr.App.R. 1991]). If the appellant remains unsentenced on the 4th to 9th charges he may thus be deprived of the opportunity of pleading autrefois convict should he be subsequently charged with the same offences - and this despite the fact that the severity of his sentence on the first three charges reflected his plea of guilty on the 4th to 9th charges (See R. v. Nicholson [32 Cr.App.R. 98])."

16. R. v. Smith, reported only in (1975) Crim.L.Rev. 468, gave guidance on how sentences should be imposed after conviction on a multi count indictment. The Court was dealing with a person who had pleaded guilty to two counts of taking a conveyance, one of going equipped for theft, one of theft, eight of forgery and three of deception and who had asked for five other offences to be taken into account. He was sentenced to three years' imprisonment on each count concurrent. The Court of Appeal held that the judge was wrong to impose: -

".... all these heavy concurrent sentences, many of them the maximum for the particular offences, Sentencing was not a matter in which filed rules of law could or ought to be asserted, but there were well known guide lines which the courts followed. Where a large number of counts had to be dealt with a series of short consecutive sentences should be avoided. Where the offences varied in gravity it was generally wrong to impose equal or similar concurrent sentences. Where the offences were, as here, of equal gravity the overall sentence should reflect the total appropriate to the course of criminal conduct, but it was fairer to impose the overall sentence in respect of the most grave offence and lesser sentences in respect of the others, the actual sentences depending on their individual gravity and on the extent to which they were part and parcel of the major offence. Generally it was not fair for an offender to have his record saddled, albeit concurrently, with a number of lengthy sentences merely because they did not increase the total."

17. We have also had our attention drawn to sub-section (2) of section 18 of the Criminal Procedure Ordinance which provides:

"If one sentence is passed upon any verdict of guilty on an indictment containing more counts than one, the sentence shall be good if any of the counts upon which such verdict has been returned would have justified such sentence."

18. This does not apply to magistrates courts.

19. We take the view that, unless it is specifically stated to be consecutive on the record, a sentence passed upon conviction on an indictment containing multiple counts is intended to be one concurrent upon each count - "the separate sentence principle". This accords with the requirements of justice and its good administration.

20. Mr. Fraklin has urged us to be wary of enunciating general principles along the lines suggested by the Crown in relation to offences tried in magistrates courts. He says it is more likely that multiple charges will make their appearance there and the justice of a case may require, where fines are imposed, that a generalised sentence be given rather than individual fines associated with each separate charge. If the court were to enunciate as a principle of sentencing that separate sentences must always be imposed this could cause considerable difficulty in the future.

21. Further, he submits that there is no prohibition in law agaisnt the imposition of that type of sentence.

22. He has referred us to an article contained in (1987) 11 Criminal Law Journal (Australia) at p.325 by Kate Warner entitled "General Sentences". That author had in mind the provisions of Acts peculiar to Australia and to cases which occurred in that jurisdiction. She does, however, urge that which she describes as "an obvious advantage" in the imposition of general sentences in cases of multiple offences and instances, as an example of the difficulties which can be encountered where separate sentences were imposed, the case of a man charged with 50 counts of breaking and entering and 8 counts of stealing. The result was a long and complicated sentence.

23. It is always to be hoped those whose duty it is to lay charges before the courts will not overload either charge sheets or indictments. If they do then it would be a matter for the judge or magistrate concerned to indicate this to the Crown's representative.

24. In our judgment it has now become part of the general principles of sentencing - and also part of the Common Law as developed by the courts - that where sentences of imprisonment are being imposed each count in an indictment should have attached to it the appropriate sentence.

25. Fines are a different matter. If the "separate sentence principle" were to be applied then, where there are more charges than one and the sentencing judge imposes a totality figure on one only, there could be the result that the convicted person pays a fine many times in excess of that which was intended.

26. It is of interest to note, and I am indebted to the research of one of my Brothers in this respect, that in the Criminal Procedure Code of one of the former East African Territories there was a provision, which may or may not still exist, to the effect that:

"Where a person is convicted of more than one offence at the same time and is sentenced to pay a fine in respect of more than one of such offences then the court may order that all or any of such fines may be non-cumulative."

27. This had the two fold purpose of making it clear that the separate sentencing principle was recognised and at the same time avoiding the imposition of fines out of all proportion to the gravity of the offences concerned.

28. In Canada there is clear authority for the proposition that fines for two separate offences cannot be imposed "concurrently". R. v. Derdarian, Beycraft and Derdarian Ltd. (1966) 1 Can.Crim.Cases 271.

29. We see no reason why the disapprobation shown over the years of generalised sentences - a disapprobation which we think now to have solidified into principle - should not also apply where the sentence is a fine whether or not it is coupled with any other form of sentence. A sentencing court will no doubt observe the principles of totality bearing in mind the means of the person convicted and his ability to pay.

30. We would interpolate here, and for the avoidance of doubt, that nothing we say in this judgment is intended to affect sentences such as Drug Addiction Treatment Centre Orders, Training Centre Orders or Detention Centre Orders.

31. In this instant case, we have no doubt that the magistrate was, and rightly so, arriving at a totality which in his view reflected the criminality involved when he imposed a generalised fine of $750. The quantum of that sentence is not in contest in this application.

32. We appreciate that Mr. Stratton did not have the benefit of the assistance on the issue afforded this Court. But, in imposing a generalised sentence as he did, we find he was in error. He was not entitled to cover the same ground by intending the payment of one fine to cover the punishment for both offences.

33. The Respondent was informed in the course of the hearing that it was not intended to make any order adverse to him. In accordance with the provisions of section 81B of the Criminal Procedure Ordinance we quash the sentence of $750 fine and in substitution therefor on charge 1 impose a fine of $500 and on charge 2 a fine of $250.