ATTORNEY GENERAL v. SIU KAM SHING

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J U D G M E N T

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Cons, Ag. C.J. delivered the judgment of the Court:

1. On the 4th of March last year SIU Kam Shing ("The Defendant") was arrested in the street. Tucked into the waistband of his trousers was an imitation pistol. In one pocket of his jacket he had ten pellets which could have been used in the pistol and in the other two springs which were probably reserve springs for the gun. The explantation that he gave to the constables, and which he repeated when eventually charged in the North kowloon Magistracy with possession of an imitation firearm contrary to section 20(1) Of the Firearms and Ammunition Ordinance, Chapter 238, was that he was taking it for repair. The magistrate, Mrs. Robertson, did not accept that She convicted him accordingly.

2. His record showed that he had been convicted of robbery and theft many years before. More importantly, as will appear later, he had been convicted of loitering and of going equipped for stealing in 1984. In recording subsequently her reasons in passing sentence the magistrate wrote:

"I decided that a term of imprisonment was necessary in the circumstance of the offence and having regard to the Appellant's record. I believed I could with justice suspended it in view of the Appellant's regular employment."

3. Unfortunately there is no power to suspend a sentence of imprisonment for an offence of this nature: see Sections 109B, 109G and the Third Schedule of the Criminal Procedure Ordinance, Chapter 221. It is equally unfortunate that both counsel for the Crown and defence counsel failed to notice the error. It is, as Mr. Cross has pointed out, the duty of counsel involved in a criminal trial to make himself familiar with the relevant sentencing powers of the court and to bring them to the notice of the court, if necessary.

4. The fact that the suspension was ultra vires was brought to the attention of the magistrate soon afterwards; but for reasons into which it is not necessary to go, it was by hen too late for her to do anything about it. Hence the present application by the Attorney to review the sentence, which is brought with the leave of the Chief Justice and must of course be granted.

5. Section 20(2) provides that if a defendant has been convicted within the previous ten years of offences certain scheduled offences then he is liable to an increased sentence for this offence, seven years instead of the normal two. The magistrate misread the seven as two, but nothing turns on that. Going equipped for stealing is one of the scheduled offences, so Defendant was within the section.

6. Mr. Cross, who appears today for the Attorney, has drawn our attention to instances where terms of imprisonment were imposed for this offence. In one of them the term was 18 months concurrent with a long sentence for robbery, and in the other, with robbery likewise, it was six months consecutive. There was a third case where twenty-one months had originally been Imposed, 'but-the single judge on appeal reduced it to such term as would allow for immediate release, the defendant by then having served some eleven months. However the circumstances of that case were unusual, that it is of little value as a precedent.

7. In passing sentence below the magistrate had the benefit of a probation officer's report which was extremely favourable to the Defendant, showing that he was holding down a steady job and that, although he was a drug addict, had been going regularly for a long time to receive treatment in a methadone centre. It is not surprising in view of that report, that the magistrate took the view she did. Since then the Defendant has unfortunately fallen a little from his then state of grace and been convicted on a charge of possession of a dangerous drug. As a result he is at present detained in a drug addiction treatment centre.

8. We have been asked by Mr. McCoy not to interfere with that treatment and to that end to substitute an absolute discharge. We do not think that would be right. A prison sentence would normally be appropriate. But in view of the unusual circumstances, and in particular the tortuous course of the criminal process against the Defendant (of which we have only been concerned with the last part) we think that it will W sufficient to substitute such a term of imprisonment as would otherwise have enabled him to be released today.