ATTORNEY GENERAL v. WU CHI SING

Headnote : Activation of suspended sentences of imprisonment: effect of such a sentence: exceptional circumstances for non-activation.

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JUDGMENT OF THE COURT

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Silke, V.-P.:

1. Wu Chi Sing, who is the respondent to this Application, appeared for trial before Mrs. Marjorie Chui, sitting in Shatin Magistracy, on two charges of theft. These were shoplifting of drugs worth in the first charge $825.90 and the second $1,072.30. He pleaded guilty and the magistrate, having considered reports provided for her by the Probation Officer and by a Clinical Psychologist, imposed sentences of fines of $2,000 on each charge.

2. The Attorney General seeks to review those sentences as being of themselves manifestly inadequate and secondly as wrong in principle.

3. The matter of wrong in principle arises from a previous conviction of the same respondent on 1st February 1989 when he had been sentenced to a period of 3 months' imprisonment, suspended for a period of 18 months. This on a precisely similar offence, that is theft of drugs, or shoplifting.

4. Mrs. Chui refused to activate the suspended sentence and she gave four reasons: (1) that the sentence of imprisonment was imposed upon the respondent when he was a first offender; (2) his psychological state had not been explored or detected; (3) he was getting married in November this year and (4) prison was not appropriate in the circumstances of this respondent.

5. We have had our attention drawn by or. Cross, who appears for the Attorney General, to that which was said by Cons, V.P. in Attorney General v. Chung Kun Wai [1989] 1HKLR 91 at page 92. The Court was there considering offences of shoplifting and it was held that it was impossible, because of the varying circumstances of both the offender and the offence, to suggest any general approach to sentencing. At page 92 the Court went on, having stated that principle:

".... that we may mention in passing, in deference to comments by counsel, that there are indeed cases in which an immediate custodial sentence is appropriate, even for first offenders.

    The position. is much the same with regard to a second or even subsequent offence. But we agree with Crown Counsel that there does come a time when an offender's record becomes such that a prison sentence is inevitable.''

6. When the respondent was sentenced in February 1989 he had, as far as we are aware, a clear record. We are not aware of any exceptional circumstances which attached to that offence which merited imprisonment. After Mrs. Chui had imposed the sentences she did, she was asked to Review them but declined to do. When that application for a Review was made no matter was drawn to her attention which would show any exceptional circumstances relating to that first conviction that would justify the sentence passed on a first offender with a clear record.

7. Section 109C of the Criminal Procedure Ordinance, Cap. 221 reads as follows:

"109C (1) If an offender is convicted of an offence punishable with imprisonment committed during the operational period of a suspended sentence or if during such period he breaks the condition imposed under section 109B(3)(a) and either he is so convicted by or before a court having power under section 109D to deal with him in respect of the suspended sentence or he subsequently appears or is brought before such a court, then, unless the sentence has already taken effect, that court shall consider his case and deal with him by one of the following methods -

(a)    the court may order that the suspended sentence shall take effect with the original term unaltered;

(b)    it may order that the sentence shall take efect with the substitution of a greater or lesser term for the original term;

(c)    it may by order vary the original order under section 109B(1) by substituting for the period specified therein a period expiring not later than 3 years from the date of the variation; or

(d)    it may make no order with respect to the suspended sentence ...."

The subsection then goes on that a court shall make an order under paragraph (a) - that is activating the sentence - of the subsection unless the court is of opinion that it would be unjust to do so in view of all the circumstances which have arisen since the suspended sentence was passed, including the facts of the subsequent offence, and where it is of that opinion the court shall state its reasons.

8. As we have indicated, Mrs. Chui took the view that in this particular case it would be unjust to activate and she specified her reasons for so refusing. She was aware that the first magistrate did not have any reports before him. She had full and detailed ones. She bore in mind that which was said in the Clinical Psychologist's Report which concluded with the expression of opinion that:

".... there might be a psychological explanation for the crime. Although the client admitted that he was motivated by greed, there were indications that greed could not entirely explain the behaviour. Further investigation would be needed to understand his problem."

9. Follow up sessions at the Clinical Psychologist's clinic were recommended.

10. The Probation Report also referred to the respondent's statement to the Probation Officer that he was activated by momentary greed and that he wished to send the medicine which he had taken to his sister overseas.

11. It is worth noting that the actual items stolen included contraceptive pills, vitamin C tablets, panadol, eye drops, vitamin drops and other tablets, none of which, he intended either to resell or to put to his own personal use.

12. It is accepted that there is a residual discretion in the magistrate not to activate suspended sentence. It is equally accepted, as was stated by Sir Denys Roberts, Chief Justice, in Attorney General v; Wong  Ho Ming [1988] 1 HKLR 317 at 320, that in the great majority of cases it is the duty of a Court to activate a suspended sentence.

13. On the face of the papers before us the imposition of imprisonment upon a first offender - for that is in fact what the first magistrate did whether he suspended or not - appears to be wrong in principle. There was, it is true, no appeal by the respondent, nor was there any application to review by the Attorney General on the basis of the sentence being manifestly excessive. There appears however to be a common misconception that, and this would relate particularly to unrepresented defendants, people get away scot free when a sentence of imprisonment is imposed but is then suspended and we can understand why there was no appeal against the particular sentence here. It however should be made absolutely clear that if a suspended sentence of imprisonment is imposed it is a sentence of imprisonment, and that any offence committed during the currency of the suspension will usually result in that sentence being served.

14. Here, Mrs. Chui was concerned and it was proper that she should be, with the justice of this particular case. She felt that it would be unjust, as the Ordinance provides, to activate the suspended sentence. In all the circumstances here we are not prepared to interfere with that exercise of her discretion while reemphasising the general principle that, unless there are circumstances which have arisen - as we think there were here in the existence of the further reports and the Magistrate's knowledge of the respondent's background - making it unjust to do so, the decision of another court should be honoured and any suspended sentence activated.

15. In all the circumstances we do not think that the fines imposed call for our interference. We refuse the application to Review.