THE QUEEN v. CHAU PING

Magistracy Appeal No. 1694 of 1988

Headnote

                Jurisdiction of the Court of Appeal in Criminal matters considered.

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JUDGMENT

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Kempster, JA (giving the judgment of the court) :

1. On 17 November 1988 at Fanling Magistrate's Court Madam Chau Ping pleaded guilty to three charges of petty theft from grocer's shops in Sheung Shui and Yuen Long in the New Territories.  Two offences had taken place on the 9th of that month and one, while she was on bail, on the 15th.  It was brought to the knowledge of Mr Paterson-Todd, the presiding magistrate, that this lady had a string of previous and similar convictions and was in breach of the conditions of two suspended sentences.  She was remanded to 19 November when the suspended sentences of three and six months imprisonment respectively were activated and sentences of three and four months immediate imprisonment imposed for the two substantive offences committed on the 9th and six months for that committed on the 15th; all to run consecutively and amounting in all to 22 months.

2. Against these sentences Madam Chau appealed to the High Court on the ground that they were too severe.  On 1 June 1989 Bewley J allowed her appeal, quashed the substantive sentences and ordered that the suspended sentences should remain unactivated.  He substituted a probation order for a period of 18 months.  Some seven weeks later, on 21 July, Madam Chau committed a further shoplifting offence at a grocer's shop in Yuen Long for which, following a plea of guilty, she was sentenced to a further three months imprisonment by Mr Candy at Tuen Mun Magistrate's Court on 21 August.  Further, the suspended sentences were again activated; making the total sentence of imprisonment imposed by him 12 months.  An application for review of sentence was refused.

3. On 31 October Madam Chau appeared before the magistrate at Sha Tin Court in respect of a similar offence committed early in July.  She was then sentenced to three months imprisonment consecutive to the period she was already serving.  She appealed against that sentence but her appeal was dismissed by Bokhary J on 11 January 1990.

4. As a result of the conviction on 21 August Madam Chau had been brought back before Bewley J on 25 October 1989.  The probation order was impliedly discharged and she was sentenced to equivalent terms of imprisonment to those originally imposed by Mr Paterson-Todd for the offences committed on the 9th and 15th November 1988, that is to 13 months in all; that period to run consecutively to the sentences currently being served.  It follows, if my computation is correct, and we are as much indebted to Mr Macrae for his research in this regard as we are for his submissions on the law, that Madam Chau is presently serving sentences amounting in all to two years and four months.  It may be observed that the police records department has apparently had some difficulty in keeping abreast of this lady's appearances in our courts.

5. On 10 April 1990 Madam Chau filed a Notice of Application for leave to appeal against the sentences imposed by Bewley J on 25 October 1989.  The question arises whether or not we have jurisdiction to entertain it.  As this court has often sought to make clear its powers derive solely from ordinance.  By section 83G of the Criminal Procedure Ordinance (Cap 221) and section 83 of the District Courts ordinance (Cap 336) we are empowered to hear appeals from sentences (not being fixed by law) imposed after conviction in the High Court and in the District Court.  Further, by section 83H(1) of the Criminal Procedure Ordinance jurisdiction is extended to sentences :-

"... when a person is dealt with by the High Court (otherwise than on appeal from a magistrate) for an offence of which he was not convicted on indictment."

By sub-section (2) -

By sub-section (3) such an offender may appeal to this court : -

6. These provisions are virtually identical with those of section 10 of the Criminal Appeal Act 1968 and would, we think, give us jurisdiction in the instant case but for the words in parenthesis in sub-section (1). Madam Chau was still being dealt with by the High Court on appeal from a magistrate when she appeared before Bewley J for the second time on 25 October 1989.   He was not exercising an original but rather a derivative jurisdiction.

7. The statutory provisions just quoted are apt to allow an appeal to this court in circumstances where a High Court judge has convicted of a crime, the existence of a probation order imposed in a different court in respect of a different offence is brought to his notice and he passes sentence in relation to both.  Any other construction of section 83H would, in our opinion, create an anomaly frustrating the apparent intention of the legislature as to be inferred from its terms.

8. This morning Mr Macrae has drawn our attention to a decision of the Court of Appeal in England turning on section 10 of the Criminal Appeal Act 1968.  In R v Harding (1983) Cr App R (s) 197 the recorder at the Reading Crown Court was dealing with an offender on indictment.  After he had convicted him and was proceeding to sentence he was reminded of the existence of a community service order which had earlier been made by the Crown Court on appeal from a magistrate's court.  He revoked that order and imposed a sentence for the underlying offence.  The offender sought to appeal.   The Court of Appeal, the judgment being given by Lawton LJ, held that they had no jurisdiction because the wording of section 10(2)(b) did not specifically cover preaches of community service orders.  In our view this authority tends to support rather than to detract from the construction we put upon section 83H of the Hong Kong ordinance.

9. Since by section 83I of the Criminal Procedure Ordinance appeals only lie by leave Madam Chau must, in any event, satisfy us, as her Notice of Appeal acknowledges, that we should extend the time for giving Notice of Application as provided by section 83Q(2) and (3) of the same ordinance.  She has this morning made an affirmation stating that she was advised, correctly as it transpires, that no appeal against the order of Bewley J could be entertained.  Indeed she was not permitted to forward any Notice of Application.   Had we found in her favour on the issue of jurisdiction we might well have extended time in the circumstances.

10. In the event, having no jurisdiction to entertain it, this application, interesting as it has been, must be dismissed.