HKSAR v. HO TUNG MAN

IN THE COURT OF APPEAL

1997, No.363
(Criminal)

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J U D G M E N T

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Power, V.-P.(giving the judgment of the Court):

1. The applicant in this matter faced two charges. The first was one of attempted robbery it being alleged that on 14th January 1997 at Flat 1A at the Mezzanine Floor of the Po Shing Building, 85 Tai Ho Road, Tsuen Wan, he attempted to rob Cheung Sau-lin. The second was one of remaining in Hong Kong without the authority of the Director of Immigration. He was charged that he was remaining at the time of the first charge in Hong Kong unlawfully without authority. He pleaded guilty to the second charge but not guilty to the first charge. He was, after trial before Deputy Judge White in the District Court, found guilty, but was given an absolute discharge in relation to that charge. He was sentenced to 12 months in relation to the second charge.

2. It was the Prosecution case that the applicant had intercourse with PW1, a prostitute, having agreed to pay her $200 for her services and that he then attempted to rob her at knife point. While this was happening, PW2, who was the boyfriend of PW1, was said to have arrived and intervened. A struggle ensued in the course of which the police, who had been called, arrested the applicant.

3. The applicant gave no evidence but had in a cautioned statement said that the prostitute had tried to force him to pay her more than the agreed amount and had shouted robbery when he failed to do so.

4. The trial judge said:

"Having so reviewed the evidence, I find myself satisfied that PW1 and 2 have testified truthfully and that the defendant has lied in order to avoid the consequences of conviction. Both prosecution witnesses were impressive and the defendant's story, I find, is quite implausible."

He then convicted the applicant on 8th April 1997.

5. When he came to sentence on 11th April 1997, he said:

"I have reviewed again the evidence in this case. I find myself with concerns about the evidence which unfortunately did not earlier emerge. Those concerns deal in part with the criminal backgrounds of the prosecution witnesses and the relevance of those backgrounds to the issue of credit.

I have examined the options that are now available to me. It seems to me that the preferable option is to discharge this defendant on the 1st charge that is before the court and in that way to indicate my concerns that have emerged, albeit at this late point.

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The defendant is sentenced to a discharge in regard to charge A..."

6. Seven days later, at the request of the Attorney General, the judge gave further reasons in which he stated:

"To further explain the matter I reviewed the evidence in preparation for the sentence hearing and found myself with serious concerns about the failure of the Crown case to lead evidence which might have established that the circumstances in which the two Crown witnesses had committed previous offences, (notably assault offences and offences of dishonesty in relation to cheques) bore no particular relevance to the case before me, which concerned allegations and counter allegations about an incident which had occurred in a one woman brothel. In this regard I noted that the Crown case did not attempt to deal with the issue of whether the two prosecution witnesses, who were described as boy-friend and girl friend, had previously been involved with each other in the commission of offences. I further noted that PW(1)'s evidence in cross-examination in this regard was that they had on one occasion both previously been jointly charged with assault occasioning actual bodily harm.

The parties submissions did not deal with these matters and on reflection I felt that they were especially relevant having regard to the defendant's allegation made in his cautioned statement, that he did not commit the offence and rather that PW(2) had in fact come from a room within the premises, holding the knife which he had used in an attempt to rob him (the defendant), in the presence of PW(1).

Having such concerns about my verdict and lacking the power to review myself I considered that in all the circumstances I should reflect my concerns to the Court of Appeal by sentencing the defendant to an absolute discharge on Charge 1. It is against this view that the Crown now appeals."

7. We commend the Magistrate for his forthrightness in bringing this matter to light when, upon consideration, he felt that there was a possibility that there had been a miscarriage of justice. The method he adopted to correct the matter has, however, given rise to an Application to Review by the Secretary for Justice and to two applications for leave to appeal out of time against conviction on the first charge and against sentence on the second charge. The Secretary for Justice is, understandably, concerned that a serious robbery should have been dealt with by giving an absolute discharge.

8. We are, however, not required to deal with the Secretary's application as we are satisfied that the appeal against conviction must succeed.

9. The judge was incorrect when he considered that he was functus officio. In S(An Infant) v. Recorder of Manchester and Others [1971] AC 481, Lord Upjohn said, at 506, where he said referring to a situation such as this:

"Unfortunately it all stems from a misunderstanding of the word 'conviction' in the case of Rex v. Sheridan [1973] 1 K.B. 223. The primary meaning of the word 'conviction' denotes the judicial determination of a case; it is a judgment which involves two matters, a finding of guilt or the acceptance of a plea of guilty followed by sentence. Until there is such a judicial determination the case is not concluded, the court is not functus officio and a plea of autrefois convict cannot be entertained. This has been the law from the earliest times; and it is equally applicable in a court of summary jurisdiction."

The judge below was, therefore, not functus officio and could have reversed his decision to convict and found the applicant not guilty. The proper course for this court is, we are satisfied, to give leave to appeal against conviction out of time and to allow the appeal. The appeal succeeds, the conviction is quashed and the Application to Review is dismissed.

10. We turn then to the application for leave to appeal out of time against sentence on the second charge. This is brought because the applicant would not, had he not faced the attempted robbery charge, have been prosecuted at all upon the second charge. He would simply have been repatriated to China. We consider it proper to adopt the course which was followed in R. v. Ng Tung-fong [1992] 1 HKCLR 114 at 119 where Silke V.-P. said when dealing with circumstances such as obtain here:

"While he was properly prosecuted, being within the existing prosecution guidelines having been charged with another offence, nevertheless once he was found not guilty of that second offence, it was open to the magistrate to discount the normal guideline sentence, given the peculiarities of the case before him. Without the possession charge the appellant would not, according to policy, have been prosecuted in the first place. Once that charge went he was in the unfortunate position of someone who was being prosecuted for an offence which, in the normal course, would have led to his unprosecuted repatriation to China. That a discount would have been proper is emphasised by that which we are now told is the current prosecution policy that is not to prosecute an illegal immigrant simply on the basis that he has committed a second offence of entering Hong Kong or remaining in Hong Kong Illegally."

The court there went on to order that the sentence should be varied to one which would effect the appellant's immediate release. We consider that is the appropriate course in the present case.

11. The application for leave to appeal against sentence, therefore, also succeeds and we order that the sentence he varied to one which will effect his immediately release. He will, of course, being an illegal entrant, remain in the custody of the Immigration authorities until repatriated.