R. v. LEE CHI PING

M.A. No.2, 3 and 4 of 1995

H E A D N O T E

The appellant was charged with a number of offences which formed the subject of four cases. He appeared before two magistrates in the same Magistracy on 13 and 14 December 1994 and received consecutive sentences totalling 4 1/2 years imprisonment. Whether sentence wrong in principle - s.57 Magistrates Ordinance Cap. 227.

IN THE SUPREME COURT OF HONG KONG

APPELLATE JURISDICTION

MAGISTRACY APPEAL NO. 2, 3 and 4 OF 1995

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J U D G M E N T

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This is an appeal against sentence

1. On 14 December 1994, the appellant appeared before Mr. Andre Wiltens in Tune Mun Magistracy in three cases in TMC 9496 of 1994, TMC 9497 of 1994 and TMC 11428 of 1994. He pleaded guilty to the following charges:

TMC 9496 of 1994

(a) trafficking in dangerous drugs, namely three straws containing 0.52 grammes of heroin and

(b) possession of 26 straws containing 4.46 grammes of heroin.

2. These offences were committed on 25 October, 1994. He was sentenced to concurrent sentences of 18 months and 9 months' imprisonment respectively.

TMC 9497 of 1994

Possession of 16.57 grammes of a mixture containing 6.95 grammes of heroin hydrochloride.

3. This offence was committed on 26 October, 1994. He was sentenced to 12 months imprisonment to run consecutive to the sentence imposed in 9496 of 1994 and any other existing sentence.

TMC 11428 of 1994

Possession of 27 straws containing 10.99 grammes of a mixture containing 2.09 grammes of heroin hydrochloride.

4. This offence was committed on 19 November 1994. He was sentenced to 6 months imprisonment consecutive to all other sentences.

5. The charges in TMC 9496 and TMC 9497 were preferred on 28 October 1994 while the charge in TMC 11428 was preferred on 14 December 1994, all in separate charge sheets. It transpired that this appellant appeared before Mr. McNair, another magistrate sitting in the same Magistracy in TMC 8154 of 1994 on 13 December 1994 when he pleaded guilty to one charge of burglary and received a sentence of 18 months imprisonment. This offence was committed on 4 September, 1994. Mr. Andre Wiltens had full knowledge of this case and the sentence. This means that within 2 days in the same Magistracy for offences committed in the same area in a matter of just over two months, the appellant was sentenced to a total of 4 1/2 years imprisonment. He received a full 3 years sentence from Mr. Andre Wiltens without any discount for pleading guilty.

6. I am absolutely astonished that the prosecuting authorities had taken no steps to bring all these charge in one single charge sheet and placed them before one magistrate as one case. If charges had already been preferred in different charge sheets, an application could be made to consolidate all the charges. If it was felt that the sentencing powers in the Magistrates Courts were inadequate, the charges contained in the one single charge sheet should be transferred to the District Court or committed for trial or sentence in the High Court. In a situation where a man had committed ten offences within a month or two months and he was charged separately for the ten offences in ten different charge sheets and tried before the same magistrate or different magistrates either or the same magistrates court or in different magistrates courts he could received prison sentences far exceeding 3 years. This runs counter to s.57 of the Magistrates Ordinance, Cap.227, both in letter and in spirit. I am even more astonished that the magistrate in these cases permitted it to happen without any enquiries or expressing concern. This practice is also undesirable in terms of manpower and resources. s.57 provides:

"Where a term of imprisonment is imposed by a magistrate, either in the first instance or in respect of the non-payment of any sum of money adjudged to be paid by a conviction or order, the magistrate may order that the said term shall commence at the expiration, in whatever manner, of any other term of imprisonment which has previously been imposed by any court. Provided that where 2 or more terms of imprisonment imposed by a magistrate are ordered to run consecutively the aggregate of the said terms of imprisonment shall not, in the case of a special magistrate, exceed 12 months and in the case of a permanent magistrate exceed 3 years."

7. For these reasons, I would allow the appeal and order the sentences in Case Nos. TMC 9496, TMC 9497 and TMC 11428 of 1994 to be all concurrent but consecutive to the sentence of 18 months imposed in Case No. TMC 8154 of 1994 thereby reducing the total sentence from 4 1/2 to one of 3 years imprisonment.