THE ATTORNEY GENERAL v. LEE CHI-KEUNG

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REASONS FOR JUDGMENT

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Sir Alan Huggins, Ag. C.J.:

1. By leave the Attorney General applied for review of a sentence of a fine of $5,000 for an offence of managing a vice establishment contrary to s.139(b) of the Crimes Ordinance. The magistrate declined to activate a suspended sentence of three months' imprisonment for a previous offence of assisting in the management of a vice establishment contrary to the same provision. The Attorney General contended that the sentence for the new offence was manifestly inadequate and wrong in principle and that the magistrate erred in not activating the suspended sentence.

2. The Defendant initially pleaded that he was "just an usher" and the magistrate correctly entered a plea of Not Guilty. However, she then indicated that the case would have to be adjourned for trial and the Defendant, wishing the matter "to be finalized", thereupon pleaded Guilty. The facts were then agreed.

3. The statement of facts included this passage:

"The Police party arrived at 16.57 hours and the defendant claimed to be the person in charge, cashier and usher."

While not necessarily agreeing with the decision in Reg. v LAM Kam-chi Crim. App. 1983 No. 1047 that a person who is acting as a cashier in a vice establishment is ipso facto "assisting in the management" of that establishment, we were satisfied that in the face of the admission to the police it was not right to extend the time for applying for leave to appeal against conviction.

4. As to the fine, Mr. Cross urged upon us that the magistrate adopted a wholly wrong approach in thinking that Reg. v LAM Kam-chi was clearly distinguishable.   She did not indicate clearly what the distinction was but a note.

"In 1047/83 defendant warned",

might suggest that it was the warning which constituted the distinction.  In that case the police had raided the establishment a month earlier and had expressly warned the defendant.  In the present case, however, the previous conviction was, in our view, an equivalent warning.  We saw no material distinction between the two cases and it followed that the magistrate was, at that time, bound by the decision of the High Court.  We were told that doubts had been expressed whether decisions of the High Court on appeal from magistrates were binding on the lower courts. We were at a loss to understand how such doubts could have arisen, but we take the opportunity to emphasize that decisions of the High Court are so binding unless and until reversed or overruled by a superior court.

5. In Reg. v LAM Kam-chi Mr. Justice Penlington said:

"Fines seem to have proved ineffective and having in mind the profits which ... these establishments must make from the charges paid, suspended sentences, unless there are exceptional circumstances, are not appropriate."

The magistrate should, therefore, have passed an immediate custodial sentence.  We do not go so far as did Mr. Justice Penlington and prefer to say, as we did in relation to a comparable offence in Attorney General v LI Wai-ming Application for Review 1984 No. 9, that in cases where large profits are likely to be made by the illegal activity of the defendant the court should seriously consider whether an immediate custodial sentence is not appropriate.  In a case where the defendant has a previous conviction - especially one for which he was previously given a suspended sentence - it is almost inevitable that he should be imprisoned forthwith.

6. The reason given by the magistrate for not activating the suspended sentence was her belief that in cases of this kind the normal practice was that a first offender was fined and that for a second offence a suspended sentence was imposed.  Even if her belief was correct, the fact remained that another magistrate had thought the first offence warranted a suspended sentence of imprisonment and, no appeal against that sentence having been brought, she should have assumed that it was an appropriate sentence. The only justification for not activating a suspended sentence is that the subsequent offence was of such a trivial character - especially if it was of an entirely different nature - that to activate the sentence would be "unjust".  That was not the case here.

7. For these reasons we were persuaded that the sentence imposed by the magistrate was manifestly inadequate and that she erred in not activating the suspended sentence.   Nevertheless, the Respondent has been subjected to prolonged proceedings since he pleaded guilty on 7th January 1984, and the suspended sentence, if it had been activated, would already have been served.  The new offence was of less than average seriousness, because the Respondent was only temporarily in charge of the establishment.   In addition, he had now gone back to his normal employment as a construction worker, and in all the circumstances we thought it would be unjust to commit him to prison at this stage.  Accordingly we dismissed the application for a review.

12th July 1984