ATTORNEY GENERAL v. TSANG CHU

IN THE COURT OF APPEAL

Application for Review
1987, No. 6

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J U D G M E N T

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Conditions attached to sentence of imprisonment suspended.

Silke, J.A.:

1. The Respondent, Tsang Chu, was convicted on his own plea of five offences of theft. These took place between the 25th September and the 15th October 1986. They involved the theft of pig-iron with a total value of $137,327. The amounts stolen, respectively, were approximately 13.78 tons, 23 tons, 19 tons, 45 tons and 12 tons.

2. The theft was committed to help a co-accused, a female, who was a restaurant-owner and who had got into financial trouble. She was joined on the fifth count. On the other four, it was accepted she was not aware that the goods she was receiving and selling in order to assist her business were stolen goods. For his trouble, the Respondent received $2,000 and a go between, who had assisted in the sales and who was charged as the 3rd Defendant at trial, received $5,000.

3. The sentence the Respondent received on each of the counts was 9 months' imprisonment and on each occasion it was suspended for a period of 18 months. There was an order that he pay $750 costs. The trial judge then made an order in relation to the suspension of the sentence of imprisonment and directed that the sentence was not to be activitated unless the Respondent committed another offence of dishonesty. It is that order which the Attorney General seeks to have this Court Review under the provisions of section 8lA Criminal Procedure Ordinance. He says that this order is wrong in principle, being made without jurisdiction.

4. The normal request was made to the Deputy Judge for his statement of Reasons for Sentence. The Deputy Judge saw fit to comply with that request by forwarding a holograph note of the proceedings. This should not have been done. The Attorney General and the Court should have been provided with the normal typescript of Reasons for Sentence which are required in an Appeal or, as this case, a Review.

5. That having been said, the order clearly was without jurisdiction. It is not a proper exercise of the discretion of the trial judge to attempt to fetter another judge in subsequent proceedings. Suspended sentences are to be activitated unless, in the words of section 109C of  the Criminal Procedure Ordinance, it would be unjust to do so. If authority for this proposition be needed, it is contained in Lee Kim Wai v. The Queen^(l) and in A.G. v. Lee Chi Keung⁽²⁾. It has been underlined as recently as the 6th April 198i in the English Court of Appeal in R. v. Clitheroe, the report in "The Times".

6. That being so, this application must succeed. The condition is not one, bearing in mind the provision of  section l09F, of the conditions that can be imposed under section l09B(3)(a) in connection with a suspended sentence. The sentence is altered in that that condition is deleted.

I.G. Cross, Esq. & Miss Evena Chan for Crown/Applicant.

Respondent in person.

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(1)   [1980] H.K.L.R. 883
(2)   Application for Review No. 3 of 1984 (unreported)