THE QUEEN v. PAU CHI KEUNG

All these offences were committed between the months of September and December 1986.

4. The magistrate imposed a sentence of two years' imprisonment on Charge A, and a sentence of 12 months' imprisonment on each of the Charges B to E. The sentences on Charges B to E were ordered to run concurrently with each other, but consecutive to the sentence on Charge A.

5. The Appellant had been sentenced on 10 October 1985 to six months' imprisonment, suspended for 18 months, by another magistrate for theft. Since all the substantive offences before Mr. Upham had been committed during the operational period of the suspended sentence, he ordered that sentence to take effect, and to commence upon the expiration of the total term of three years' imprisonment he had earlier imposed.

6. The Appellant appealed to the High Court against sentence only. The appeal came before Barnes J. on 29 May who directed, under s.118(1)(d) of the Magistrates Ordinance, that the appeal be referred to this Court.

7. R. v. Cheung Hei Lai: This Appellant was convicted by Mr. Upham, after a trial, of the possession of dangerous drugs for the purpose of unlawful trafficking (two charges, Charges A and B) contrary to s.7(1) of the Dangerous Drugs Ordinance, Cap.134 and of trafficking in dangerous drugs (Charge C) contrary to s.4(1)(a) of that Ordinance.

8. She was sentenced to concurrent terms of three years' imprisonment on Charges A and C and eight months' imprisonment on Charge B.

9. Since the Appellant had been sentenced to six months' imprisonment, suspended for 18 months, by another magistrate on 25 September 1985, and the offences, of which, she had been convicted by Mr. Upham were committed during the operational period of the suspended sentence, he directed that the suspended sentence be brought into effect and that it run consecutively to the total of three years' imprisonment just imposed.

10. The Appellant appealed to the High Court against conviction and sentence in relation to all the three charges. On 25 May, Barnes J. dismissed her appeals against her convictions and the substantive sentences totalling three years, and referred the point of law raised by the activation of the suspended sentence to this Court. The learned judge is expressly empowered by s.118(1)(d) of the Magistrates Ordinance to dispose of some of the issues and to limit the reference in this way.

11. With regard to the substantive sentences of three years, in aggregate, imposed on Pau Chi Keung, the magistrate gave unassailable reasons for imposing the maximum sentences allowed by the jurisdiction given him and Mr. Christopher Grounds who now appears for the Appellant has not sought to contend that they were excessive. They clearly were not. This was an appalling catalogue of crime and we agree with the magistrate's comment when he said:

"The Appellant was fortunate these matters were left in the Magistracy."

12. We would say here that if the magistrate had jurisdiction to do what he did, we are entirely satisfied that the extended periods of imprisonment which each Appellant would have to serve as a result of the activation of their respective suspended sentences are in no way excessive in their totality. Mr. Grounds concedes this.

13. It is now necessary to refer to the relevant statutory provisions. Section 57 of the Magistrates Ordinance is in these terms:

"57. Where a term of imprisonment is imposed by a magistrate either in the first instance or in respect of the non-payment of any sum of money adjudged to be paid by a conviction or order, the magistrate may order that the said term shall commence at the expiration, in whatever manner, of any other term of imprisonment which has previously been imposed by any court:

Provided that where 2 or more terms of imprisonment imposed by a magistrate are ordered to run consecutively the aggregate of the said terms of imprisonment shall not, in the case of a special magistrate, exceed 12 months and in the case of a permanent magistrate exceed 3 years. Nothing in the foregoing proviso shall be deemed to affect the provisions of section 44."

14. The law relating to suspended sentences is to be found in ss.109B to 109G of the Criminal Procedure Ordinance, added by Ordinance No. 5 of 1971. Section 109.6 gives the Courts power to suspend sentences of imprisonment subject to its terms. Section 109C prescribes the powers of the Court to deal with a suspended sentence on the commission of a further offence, and the material parts are as follows:

"109C. (1) If an offender is convicted of an offence punishable with imprisonment committed during the operational period of a suspended sentence or if, during such period, he breaks a condition imposed under section 109B(3)(a) and either he is so convicted by or before a court having power under section 109D, to deal with him in respect of the suspended sentence or he subsequently appears or it brought before such a court, then; unless the sentence has already taken effect, that court shall consider his case and deal with him by one of the following methods -

(a) the court may order that the suspended sentence shall take effect with the original term unaltered;

(b) it may order that the sentence shall take effect with the substitution of a greater or lesser term for the original term;

(c) it may by order vary the original order under section 109B(1) by substituting for the period specified therein a period expiring not later than 3 years from the date of the variation; or

(d) it may make no order with respect to the suspended sentence, and a court shall make an order under paragraph (a) of this subsection unless the court is of opinion that it would be unjust to do so in view of all the circumstances which have arisen since the suspended sentence was passed, including the facts of the subsequent offence, and where it is of that opinion the court shall state its reasons.

(2) Where a court orders that a suspended sentence shall take effect, with or without any variation of the original term, the term of such sentence shall commence on the expiration of another term of imprisonment passed on the offender by that or another court, unless the court is of opinion that, by reason of special circumstances, the sentence should take effect immediately.

(3) ………

(4) ………

(5) ………

(6) For the purposes of any Ordinance conferring rights of appeal in criminal cases any such order made by a court shall be treated as a sentence passed on the offender by that court for the offence for which the suspended sentence was passed."

15. The very point of law with which we are concerned in these appeals arose in Ho Bing Chun v. The Queen [1977] H.K.L.R. 68. There, the magistrate imposed concurrent sentences of three years' and of nine months' imprisonment. He also activated a suspended sentence of six months' imprisonment and ordered that sentence to run consecutively to the other sentences. On an appeal to the from that that the High Court, Trainor J. made reference to s.57 of the Magistrates Ordinance, and to ss.109B(5)(a) and 109C(6) of the Criminal Procedure Ordinance, and said:

"It seems clear to me subsection [s.109C(6)] that the activated sentence of 6 months imprisonment is to be considered as if it were a sentence of imprisonment imposed by the activating magistrate. The result therefore is that the magistrate imposed sentences of imprisonment to be served consecutively the aggregate of which exceeds the jurisdiction conferred on him by section 57 of the Magistrates Ordinance."

16. The learned magistrate dealt with both the cases before him with great care, and gave full and cogent reasons for his view of the true effect of the relevant statutory provisions which was contrary to that expressed by Trainor J. However, we feel obliged to say that since it was not possible to distinguish Trainor J.'s decision, and there was no conflicting authority which the magistrate could follow on the principles restated in Attorney General v. Gardiner [1987] H.K.L.R. 22, he was bound by Ho Bing Chun: see, for example, Attorney General v. Lee Chi Keung, Application for Review No. 3 of 1984 (unreported).

17. The magistrate should have followed Trainor J.'s decision, explaining why he thought it might have to be reviewed, and indicating what order he would have made were he free from binding authority to make it, leaving it for the Crown to apply, if so minded, for a case to be stated on the point of law involved, under s.105 of the Magistrates Ordinance.

18. Be all that as it may, we have reached the firm conclusion, with very great respect to Trainor J., that Ho Bing Chun was wrongly decided and must be overruled. We intend no disrespect to the careful arguments put forward on behalf of the Appellants by Mr. Grounds when we content ourselves by saying that we have not been persuaded otherwise. There is, we accept, some force in his submission that that authority has stood for 10 years without any intervention by the legislature, but we find ourselves unable to escape what seems to us to be the plain language used in the relevant Ordinances.

19. In our judgment, the words "… where 2 or more terms of imprisonment imposed by a magistrate …" in the proviso to s.57 of the Magistrates Ordinance refer back to the words with which the section begins: "Where a term of imprisonment is imposed by a magistrate either in the first instance or in respect of the non-payment of any sum of money ..." and the section does not govern the circumstances where an order is made under 109C of the Criminal Procedure Ordinance that a suspended sentence take effect.

20. At p.69 of the report of Ho Bing Chun, before the passage from his judgment which has been read, Trainor J. seems to have relied upon s.109B(5)(a) of the Criminal Procedure Ordinance, for he quoted the first part of it. We need only say that we are unable to accept that a provision which deals with the effect of a suspended sentence which has not been activated, can affect the issue which is before us.

21. Again, with due respect, it seems clear to us that Trainor J. erred in drawing support for his construction of the law from s.109C(6) of the Criminal Procedure Ordinance. He seems to have overlooked the opening words of that subsection: “For the purposes of any Ordinance conferring rights of appeal in criminal cases …” In our view, the sole purpose of these provisions is to ensure that a defendant has a right of appeal in respect of a suspended sentence which has been activated. The English Court of Appeal took this view of the purpose and effect of precisely similar provisions then in force in the United Kingdom (now re-enacted as s.23(9) of the Powers of Criminal Courts Act 1973) in R. v. Pike (1971) 56 Cr. App. R. 455.

22. The scheme of s.109C is clear enough. When the conditions set out are satisfied, a Court (and this includes "a magistrate": s.109G) is obliged to make an order that a suspended sentence shall take effect with the original term unaltered unless, for reasons to be stated, the Court thinks that it would be unjust to make such an order, and the term of the activated sentence will run consecutively unless the Court orders otherwise for special reasons. There is nothing in the wording of the applicable provisions in either Ordinance to suggest that the essentially mandatory terms of s.109C are to be read subject to s.57 of the Magistrates Ordinance. When a Court acts under s.109C, it is not imposing a sentence of imprisonment, but directing a sentence imposed in the past to take effect.

23. Each of these appeals, on its own facts, demonstrates how the plain intention of the legislature would be frustrated if s.57 of the Magistrates Ordinance were to be read as controlling the powers of a Court under s.109C of the Criminal Procedure Ordinance. A contrary' construction would mean that where a magistrate considers that sentences totalling three years are merited in view of the gravity of the offences of which a defendant stands convicted before him, having regard also to his antecedents, the magistrate would be obliged to accommodate the s.57 three year limit by refusing to activate a suspended sentence, or by ordering that it takes effect immediately (otherwise than on the grounds permitted, respectively, by subsection (1) or (2) of s.109C of the Criminal Procedure Ordinance) or by reducing the substantive sentences which he considered to be appropriate. This is not a result which the legislature could have intended.

24. We hold that the magistrate's order. in each case, was within his jurisdiction.

25.Before taking leave of these appeals, we wish to draw attention to para.(b) of subsection (1) of s.109C of the Criminal Procedure Ordinance which allows a Court to order a suspended sentence to take effect with the substitution of a greater or lesser term for the original term. We note that the power to substitute a greater term is not to be found in the legislation from which our suspended sentence provisions derive.

26.The power to substitute a lesser term is perfectly understandable for it enables a Court to take a course approved in R. v. Bocskei (1970) 54 Cr. App. R. 519: to adjust either the duration of the suspended sentence it proposes to activate, or that of the substantive sentence it is minded to impose, so as to ensure that the totality is not excessive (and see R. v. Munday (1971) 56 Cr. App. R. 220).

27.However, we are not, ourselves, able to envisage circumstances in which it could ever be proper to substitute a greater term for that of the original sentence. On what basis could such ail exercise of discretion fairly he based, especially where the original sentence (though suspended) was imposed by a differently constituted Court? It must be borne in mind that the Crown has the right to apply for a sentence to be reviewed if it is thought to be manifestly inadequate. It may be that the appropriate authorities will wish to reconsider s.109C(1)(b) in its present form.

28.Magistracy Appeal No. 249 of 1987 is dismissed. In relation to Magistracy Appeal No. 373 6f 1987, we answer the question referred to us in the negative: the magistrate did not exceed his jurisdiction. No purpose would be served by remitting the matter to Barnes J. with our opinion, and so what remains of that appeal is also dismissed.

Mr. C. Grounds (D. L.A.) for each Appellant.

Mr. G.J.X. McCoy, Senior Crown Counsel, for the Crown.