R. v. WU MAN LAI

IN THE HIGH COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY CRIMINAL APPEAL No. 376 of 1997

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J U D G M E N T

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Chan J:

1. The appellant pleaded guilty to one count of using a false instrument. He was ordered to perform community service for 120 hours and to pay compensation to the victim in the sum of $38,500. The compensation was allowed to be paid by monthly instalments of $3,000 each commencing on 30th April 1996. The sentencing magistrate also ordered that in default of the compensation order, the appellant was to serve six months' imprisonment.

2. The details of the facts in this case are not quite material to this appeal. The appellant was a sales representative of cars. He managed to ask the victim to sell her car to his company at $55,000. Having paid the victim $16,500 as part payment, he drove the car away, promising to pay the balance before 28th April 1997. When the victim was not paid the outstanding balance, enquiries were made and it was discovered that in the relevant documentation regarding the sale of the car, the signature was false. The matter was then reported to the police. About nine to ten months later the appellant surrendered himself to the police. Upon his plea, the sentencing magistrate made the Community Service Order and the compensation order.

3. However, after having paid only $6,000, he failed to keep up with the monthly payments. Furthermore, he did not do any of the community service. When he was brought before the magistrate again, he was sentenced to eight months' imprisonment for the offence and ordered to pay the balance outstanding in a sum of $32,500 within one months or in default, four months imprisonment.

4. Upon an application for review of sentence, the sentencing magistrate discovered that the appellant was already in prison as a result of his default in complying with the compensation order. It would seem that after the appellant had defaulted, a warrant of committal was issued and he was put in prison where he had spent some six months. The magistrate therefore reduced the sentence for the offence from eight months to six months but set aside his four months imprisonment in default of compensation order which he had made earlier. As a result, the appellant was to be detained in prison for a total of 12 months. He had served about 6 months for the default and still had to serve another 6 months for the offence. He now appeals against sentence.

5. The main and in fact only ground of appeal was that the magistrate was wrong in principle in sentencing the appellant to imprisonment for his default in making payment pursuant to the compensation order. It was submitted that the magistrate should have considered the appellant's means at the time of his default. In other words, it was submitted that the learned magistrate should first of all have made enquiries as to the appellant's means and should then have considered whether any extension of time would serve any useful purpose. It was only after the magistrate had undertaken these two steps that the appellant could be put in prison for his default. The learned magistrate should also, when exercising his power under section 68 of the Magistrates Ordinance, consider what period of imprisonment in his opinion would satisfy the justice of the case.

6. I think counsel must be right. Whoever put the appellant in prison for six months upon his default in complying with the compensation order without making enquires as to his means and considering the circumstances of the default was wrong to do so. The learned magistrate who varied the sentence by substituting 8 months for the Community Service Order and subsequently upon review reduced it to 6 months was of course entitled to do so. But he had not taken into consideration that the 6 months which the appellant had spent for the default to pay the compensation should not have been "executed" without ascertaining why he defaulted and whether he had the means to repay.

7. In my view, the sentence in default of the compensation order was defective without the necessary enquires having first been made. He should not have been put in prison. When the learned magistrate had to sentence him for the offence as a result of his breach of the Community Service Order, he should have been made aware of the fact that the appellant should not have detained in prison for the default. And while he had discharged the 4 month sentence in default, he should also have borne in mind the appellant's incarceration when he ordered the sentence in substitution for the Community Service Order. If he had, he might not have imposed another 8 months (or later 6 months on review).

8. I am given to understand that the appellant's family are now able to repay the balance of the compensation within the next two months. He would give an undertaking to pay it within that period. I think the interest of justice would best be served if the period of incarceration which the appellant had served would be counted as part of the sentence for the offence. In these circumstances, I would allow the appeal in part. The sentence for the offence, namely, six months, do stand with the order that the period of incarceration which the appellant had served as a result of his default in complying with the compensation order be counted as part of that sentence. The imprisonment in default of payment of a fine be set aside upon the undertaking given by the appellant that he would pay the balance of the money due to the victim within two months from the day of order.