THE QUEEN v. NG YUN TONG

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY CRIMINAL APPEAL NOS. 800, 811 and 815 OF 1988

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REASONS FOR JUDGMENT

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1. The appellant pleaded guilty before three different magistrates in three different cases to a series of offences involving theft and obtaining money on a forged instrument.

Magistracy Criminal Appeal 800/88

2. He first appeared before bars Marjorie Chui at the Magistrates Court at San Po Kong where he pleaded guilty to three charges of theft and three charges of obtaining money on a forged instrument. In each case he stole a cheque from a particular company and then forged the cheque and obtained money on it. There were, therefore, three separate transactions, each of which involved a theft and obtaining money on a forged instrument. The magistrate imposed sentences of 3 months imprisonment on each charge, ordering that the sentence on the "obtaining money on a forged instrument charge should be concurrent to that on it relative theft charge, but the sentences on each of the theft charges should be ordered to run consecutively. The total sentence for these three transactions was, therefore, 9 months imprisonment. In addition to this the magistrate ordered that the appellant should make restitution of $12,120.70 to the victims, and in default, 9 months imprisonment should be served consecutively to the total of 9 months impriosnment alredy imposed.

3. The main ground of appeal in respect of this case is that the learned magistrate failed to ascertain the appellant's means and his ability to pay before ordering him to make restitution to the victims in the sum of $12,120.

4. Miss Catherine Fung for the Crown drew the Court's attention to the fact that the 9 months imprisonment imposed in default of paying the sum ordered is within the scales laid down in section 68 of the Magistrates Ordinance for non-payment of money. However, she conceded that the magistrate had erred in not making any investigation as to the means of the appellant.

5. It is clear that the scale laid down in section 68 covers not just moneys payable in respect of a fine, but also money payable in respect of the property, the subject of the offence or in respect of the injury done by the offender or in respect of the default of a sufficient distress to satisfy any such sum. The obligation of a magistrate to ascertain the mean's of the defendant to pay any fine he imposes within a reasonable time has been expressed in numerous cases and is well known. In view of the fact that the court can order imprisonment for non-payment of other sums of money on the same scale as fines, I think that the same principle applies and that the magistrate should ascertain the means of the defendant to pay within a reasonable time the amount of money to be paid, before ordering a period of imprisonment for non-payment.

6. On this matter being conceded by the Crown, I set aside the order, for restitution and prison in default.

7. It is perhaps worth noting that under section 98 of the Magistrates Ordinance the power to award compensation is limited to $5,000 in respect of loss or damage to property. Furthermore on the facts a restitution order could not be made under section 30 of the Theft Ordinance, Cap. 210.

Magistracy Criminal Appeal 811/88

8. The appellant came before magistrate Michael Lee and pleaded guilty to four charges of theft and four charges of obtaining money on a forged instrument, in similar circumstances to the previous case. He obtained in excess of $30,000. The magistrate was informed that the appellant was already serving a term of 18 months imprisonment in respect of the previous case. In the circumstances he passed sentences of 12 months impriosnment on each charge to run concurrently but consecutively to the prison sentences imposed in the previous case. In my view, it might have been better if Mr Lee had adopted the same course as Mrs Marjorie Chui to deal with each transaction separately and to pass concurrent sentences in respect of the theft and obtaining money on a forged instrument charges where the transactions were the same, but to pass consecutive sentences where there were separate transactions. However, had he adopted the same course as Mrs Chu, he would probably have also arrived at a sentence of 12 months imprisonment having regard to the totality.

Magistracy Criminal Appeal 815/88

9. The third case came, before Mr Paterson Todd and consisted of one charge of theft and one charge of obtaining money on a forged document. The total amount stolen came to $5,543.10. The magistrate imposed a sentence of 18 months imprisonment on each charge, to run consecutively to each other and also consecutively to the sentences imposed in the two previous cases.

10. With respect to him, even taking into account the bad record of previous convictions which the appellant had, and the other offences in respect of which he was serving sentence, those sentences were far too severe. The effect was that the appeallant would altogether serve a sentence of 5½ years imprisonment.

11. In my view, the proper course for each magistrate follow when passing sentence in circumstances where he knew the appellant was already serving a prison sentence, was to take into account the totality of the sentences to be imposed. The total amount stolen in the series of offences was approximately just over HK$41,000. The appellant's bad record did not entitle him to any discount that he might normally expect for a clear record, but he did plead guilty to all these offences. A man should not be punished twice for his previous offences. Taking all things into consideration and having regard to the principle of totality, I considered that the total sentence which the appellant should serve in respect of all these offences was aperod of 2 years imprisonment. I therefore considered it appropriate to allow the appeals in this case in the following way :-

1. In Criminal Appeal 800/88 to set aside the order of the magistrate that the appellant should pay restitution or go to prison for 9 months in default.

2. In Criminal Appeal 311/88, to pass sentences of 3 months imprisonment on each of the charges but to order that the sentences should run concurrently where they are part of the same transaction but consecutively where they are separate transactions, making a total of 12 months imprisonment.

3. The sentences imposed in Criminal Appeal 815/88 should be reduced to 3 months each and ordered to run concurrently but consecutively to the sentences imposed in the two previous cases.

12. That brought the total period of imprisonment to 2 year