THE QUEEN v. YUEN SHEK ON

IN THE COURT OF APPEAL

1986, No. 1160
(Magistracy)

Headnote

Sentence – Sec. 57 of Magistrates Ordinance, Cap. 227 - what aggregate of sentences is permitted if sentences passed by different magistrates - the three year limit under Sec. 57 only applies to sentences passed by the same magistrate in a case.

Conflicting decisions of Court of Appeal - how to resolve.

IN THE COURT OF APPEAL

1986, No. 1160
(Magistracy)

THE QUEEN

and

YUEN SHEK-ON

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_________________

JUDGMENT

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Yang, J.A.:

1. Yuen Shek-on was arrested on 14th May 1986 for possession of dangerous drugs for the purpose of unlawful trafficking. He was brought before a magistrate at North Kowloon Magistracy on the following day, and on the 27^th October 1986 he was convicted by Mr. Corcos of the offence after trial. A sentence of two years' imprisonment was imposed.

2. Prior to that, Yuen Shek-on had been sentenced by another magistrate at North Kowloon Magistracy on 22nd July 1986 to two years' imprisonment for trafficking in dangerous drugs which took place on 14th April 1986, and six weeks' imprisonment for resisting arrest, the two sentences were ordered to run concurrently.

3. Mr. Corcos ordered the sentence he imposed to be consecutive to the concurrent sentences imposed by the other magistrate on 22nd July 1986.

4. Yuen Shek-on appealed against his conviction and sentence in respect of the 14th May 1986 offence. The matter came before Addison, J. who dismissed Yuen's appeal against conviction. An issue arose as to whether, having regard to Sec. 57 of the Magistrates Ordinance, Cap. 227, Mr. Corcos had properly ordered his sentence of two years to run consecutively to an earlier sentence of two years imposed on a separate occasion by a different magistrate. As the authorities are somewhat conflicting Addison, J., in pursuance of Sec. 118(1)(d) of the Magistrates Ordinance Cap. 227, directed that Yuen Shek-on's appeal against. sentence be reserved for the Court of Appeal.

5. Yuen has said nothing in support of his appeal against his sentence that might cast doubt oh the appropriateness of the sentence of two years for the offence committed on 14th May 1986. He was caught red-handed with 13 small packets in three larger packets, containing a total of 7.82 grammes of a mixture of salts of esters of morphine. The present offence was committed while he was on bail for the 14th April 1986 offence. Regarding this as a "particularly insolent offence", and having regard to his three similar previous convictions, Mr. Corcos sentenced him to two years' imprisonment. In our view the sentence is entirely proper.

6. The only question that calls for consideration is the one referred to us by Addison, J. and it is this: Assuming the sentence of two years imposed by Mr. Corcos not to be inappropriate, whether it is legally permissible under Sec. 57 of the Magistrates Ordinance; for him to order it to run consecutively to the two years imposed by another magistrate on an earlier occasion and whether the aggregate of such sentences exceeds Mr. Corcos jurisdiction of thee years' imprisonment?

7. Sec. 57 provides -

“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."

8. The earliest decision which has been cited to us by Mr. Cross is Kan Yat-fan v. The Queen (1966) H.K.L.R. 301 where Huggins, J. (as he then was) decided that the then Sec. 56 of the Magistrates Ordinance (which is the same as the now Sec. 57) is restricted to a case where sentences are imposed by a single magistrate. In other words, Mr Corcos was entitled to do as he did on the authority of Kan Yat-fan. However this decision was not discussed or followed by Cons, J. (as he then was) in Yu Shing-hoi v. The Queen Criminal Appeal No. 826 of 1976 where it was held the aggregate must not exceed 36 months. Then came Tsang Shek-sun v. The Queen Criminal Appeal No. 1008 of 1977 when Huggins, J.A. (as he then was) followed his earlier decision in Kan Yat-fan but did not mention Yu Shing-hoi.

9. Then came a decision of the Court of Appeal in Wong Sai-nang v. The Queen (1980) H.K.L.RD 242. The headnote reads:

“The first appellant was sentenced in the District Court to six years' imprisonment for robbery, the term 'to run consecutively to any other sentence'. On an earlier date the first appellant had already been sentenced to four years' imprisonment for an aggravated burglary committed two weeks after the robbery offence.

On appeal against sentence.

Held:

The present case fell within section 82(1) of the District Court Ordinance and by reason of the proviso to that section the judge could not lawfully pass any sentence which, when aggregated with the existing sentence of four years' imprisonment, exceeded seven years."

10. Sec. 82 of the District Court Ordinance, Cap. 336 contains a provision similar to Sec. 57 of the Magistrates Ordinance:

"82.(1)" Where the Court sentences any person to undergo a term of imprisonment for an offence, and such person is already undergoing, or is at the same time sentenced to undergo, imprisonment for another offence, it shall be lawful for the Court to direct that such imprisonment shall commence at the expiration of the term of imprisonment which such person is then undergoing or has been so previously sentenced to undergo as aforesaid.

(2) Notwithstanding the provisions of any enactment in force at the commencement of this Ordinance and notwithstanding that proceedings have not been taken by way of indictment, the Court may impose any penalty and make any order provided by law for or in connexion with any offence of which it has cognizance:

Provided that -

(a) no sentence of imprisonment passed by the Court shall exceed 7 years in respect of one offence and where 2 or more consecutive terms of imprisonment are imposed by the Court under subsection (1), the aggregate of the said terms of imprisonment shall not exceed 7 years; and

(b) any term of imprisonment imposed in default of payment of a fine shall not exceed 1 year."

11. No authorities were cited in Wong Sai-nang and it is clearly inconsistent with Kan Yat-fan and Tsang Shek-sun.

12. More recently, there is the case of The Queen v. Chan Chung-or Criminal Appeal No. 349 of 1985 where this Court on an erroneous concession by Crown Counsel followed Wong Sai-nang. No other authority was cited and the decision was, without question, given per incuriam.

13. The matter is now settled by Hamilton and Forrest (1981) 3 W.L.R. 79, where the House of Lords considered the virtually equivalent provisions of s.108(1) of the Magistrates' Courts Act 1952, in effect confirming the decision in Kan Yat-fan (supra): vide pp 85F-86G, per Lord Fraser of Tullybelton. With the greatest respect we are of the view that Hamilton and Forrest is clearly right and should be followed.

14. It remains for us to resolve the conflicting decisions of the courts in Hong Kong. Young v. Bristol Aeroplane Co. Ltd. (1944) K.B. 718 is clearly in point. In deciding to follow Hamilton and Fraser, we need go no further than to refer to the headnote for support -

“The Court of Appeal is bound to follow its own decisions and those of courts of co-ordinate jurisdiction, and the 'full' court is in the same position in this respect as a division of the court consisting of three members. The only exceptions to this rule are:- (1.) The court is entitled and bound to decide which of two conflicting decisions of its own it will follow; (2.) the court is bound to refuse to follow a decision of its own which, though not expressly overruled, cannot, in its opinion, stand with a decision of the House of Lords; (3.) the court is not bound to follow a decision of its own if it is satisfied that the decision was given per incuriam, e.g., where a statute or a rule having statutory effect which would have affected the decision was not brought to the attention of the earlier court."

15. For the foregoing reasons, the first part of the question posed by Addison, J. is answered in the affirmative. The aggregate of the sentences passed by Mr. Corcos did not exceed his jurisdiction. The appeal against sentence is accordingly dismissed.

16. Finally we would like to acknowledge our indebtedness to Mr. W.S. Cheung, Crown Counsel, for his researches into the authorities.