THE QUEEN v. AU CHAK KWAN

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

Magistracy Criminal Appeal No. 285of 1987

________________

________________

________________

J U D G M E N T

________________

1. The appellant was convicted on the 5th March 1987 of five charges of theft and for these offences was sentenced to 7 months' imprisonment on such charge, to be served concurrently.

2. The appellant has 23 previous convictions and aside from two other convictions, all of them were in respect of theft. What has been raised in this appeal concerns the activation of three suspended sentences which were imposed on the appellant on the 14th March 1986 and on the 12th May 1986 respectively.

3. On the 14th March 1986, the appellant was convicted of (A) -. Theft; (B) - possession of dangerous drugs for the purpose of unlawful trafficking; (C) - criminal damage to property and (D) - common assault. In respect of the theft charge, she was sentenced to two months' imprisonment. On the (B) charge, she was convicted and discharged; on the (C) charge, she was sentenced to two months' imprisonment, suspended for one year, and ordered to pay $200 compensation, and on the (D) charge, she was fined a total of $1,000.

4. On the 12th May 1986, she was convicted (A) of theft, and (B) of assault occasioning actually bodily harm. The magistrate on that occasion imposed, in respect of the (A) charge, six months' imprisonment suspended for 18 months and on the (B) charge, she was fined $1,000 and sentenced to nine months' imprisonment suspended for two years. The magistrate in the instant case activated the suspended sentences in the conviction for criminal damage to property, i.e. the two months' imprisonment suspended for one year from 14th March 1986, and also the sentences for theft and assault occasioning actual bodily harm on the 12th May 1986, the sentences being six months suspended for 18 months and (B) nine months suspended for two years. In all the appellant is now required to serve 18 months' imprisonment. It has been submitted on her behalf that the imposition of an immediate custodial sentence and another sentence suspended for a period of time on the same occasion was wrong in principle, and the case of The Attorney General v. Tse On[1] was cited in support of this proposition :-

“(Following Sapiano [1968] 52 Cr. App. R674 and Butters & Fitzerard [1971] 55 CAR 515), it is wrong to impose immediate and suspended custodial sentences together, whether they are concurrent or consecutive. Once it is decided that the case is one demanding an immediate custodial sentence the appropriate course is to acknowledge the necessity for custody by imposing concurrent custodial sentences on other counts as well.”

5. In that case, a District Judge imposed on the respondent, Tse On, a sentence of 9 months' imprisonment for burglary. On the same occasion, two further offences of burglary had to be dealt with and the judge sentenced the respondent to two further terms of 18 months' imprisonment each to run concurrently but ordered that these sentences be suspended. On the application of the Attorney General that the sentences were wrong in principle, the Court of Appeal allowed the application for review and set aside the suspended sentences of 18 months' imprisonment and substituted a sentence of nine months to run concurrently with the first sentence. In doing so, the Court referred to the two cases of Butters & Fitzereld and Sapiano and in the judgment McMullin, V.P. said that it is clear from both of these cases whether the order is that the sentences are to run concurrently with or consecutively to an immediate custodial sentence they are wrong in practice. In Butters' case, the judge dealing with the case upon appeal, Mr Justice Roskill, as he then was, pointed out that the principle laid down by the court in Sapiano was not laid down as a matter of law but as a matter of good sentencing practice. McMullin, J.A. went on to say:-

"This Court desires to emphasize that there is no statutory bar upon passing concurrent sentences of imprisonment, the one immediate and the other suspended. Nor is there any bar as a matter of law upon passing sentences of imprisonment one to follow the other consecutively, the one immediate and the other suspended ………

It seems to this Court that in general, courts of trial should avoid 'mixing up' sentences which fall into different categories. It is in general bad sentencing practice to pass concurrent sentences of imprisonment, the one immediate and the other suspended. But this Court repeats that that is a matter of practice and not a matter of law.

Although stated in that way as a matter of practice and not of law, it is a practice which we think must be adopted in this territory as well."

(See also Leung Cheung-chung v. R. Mag. Appeal No. 17 of 1984)

In relation to the sentences which were imposed on the present appellant on the 14th March 1986, the sentence which was suspended should have been imposed as a concurrent sentence with the immediate custodial sentence of two months and not suspended as it was in this case.

6. Further submissions were made in respect of the sentences which were imposed on the appellant on the 12th May 1986 : there were two suspended sentences, one for theft and the other for assault occasioning actual bodily harm. It has peen submitted that it was wrong in law that the magistrate imposed a fine as well as a suspended sentence on the appellant in respect of the offence of assault occasioning actual bodily harm. The appellant was convicted of occasioning actual bodily harm contrary to section 39 of the Offences Against the Person Ordinance, which section provides that any person who is convicted of that offence is guilty of a misdemeanour and is liable to imprisonment for three years. In section 58 of the same Ordinance it is provided that wherever any person is convicted of any indictable misdemeanour punishable under the Ordinance, the Court may, in addition to or in lieu of any punishment authorised by the Ordinance fine the offender, and to order that he be bound over to keep the peace. The ordinance provides for certain offences like common assault to be triable summarily whereas the offence of assault occasioning actual bodily harm is treated as an indictable misdemeanour, although it may be tried summarily in accordance with Section 92 of the Magistrates Ordinance, Chapter 227 where on conviction the sentence of two years' imprisonment or a fine of $10,000 may be imposed. However, the proviso to that section states that nothing in the section shall affect any greater punishment specifically provided for in any other Ordinances. Section 97 of the Magistrates Ordinance, provides that where upon conviction a magistrate has authority to impose a sentence of imprisonment but not a fine, if he thinks the justice of the case will be better met by a fine than by imprisonment, he may impose a fine of $10,000.

7. It has been submitted on behalf of the appellant that the magistrate, when considering or hearing or trying a case by virtue of Section 92 of the Magistrate Ordinance, is restricted to imposing the punishment set out in Section 92 of the Magistrates Ordinance, that is, he may sentence an accused to imprisonment for two years or to a fine of $10,000 but not to both imprisonment and fine.

8. The proviso to Section 92 of the Magistrates Ordinance, in my view specifically applies to an offence such as that of assault occasioning actual bodily harm, because under Section 39 and Section 58 of the Offences against the Person Ordinance, there is provision for both a sentence of imprisonment and a fine to be imposed upon summary conviction for that offence.

9. It has also been submitted on behalf of the appellant that the aggregate sentence in respect of the present charges and the activation of the suspended sentences is excessive, and Mr Wong cites R. v. Smith[2] for the proposition that the situation where suspended sentences have been allowed to accumulate should be avoided wherever possible, so as to prevent the totality of activated sentences from being excessive.

10. Taking all these matters into consideration, the cumulative sentences, both imposed for the instant offences and those activated are in my view excessive, and I think justice would be done if a sentence of 12 months' imprisonment were substituted for the 18 months' imprisonment imposed on the appellant. To that extent, this appeal is allowed.