THE QUEEN v. NYUYEN BACH XUYEN

IN THE HIGH COURT

1992, No. 833
Magistracy Appeal

Headnote

Criminal Law and Practice – Magistrate’s powers under section 92 Magistrates Ordinance cap. 227 - the word “OR” to be construed disjunctively - Magistrate had no power to impose fine as well as sentence of imprisonment.

IN THE HIGH COURT

1992, No. 833
Magistracy Appeal

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J U D G M E N T

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1. On 11th September 1992 the appellant was convicted at the Eastern Magistracy on two criminal charges. This appeal relates to one of them. Charge (A), Theft, contrary to Section 9 of the Theft Ordinance. The charge was to this effect:

2. That on the 26th August 1992 at the junction of Fleming Road and Johnston Road Wanchai the appellant stole a number of things the property of one Kitty CHENG Po-wah. The property stolen was a wallet and its contents which included credit cards and cash amounting to $420.

3. The appellant pleaded guilty to the charge and was sentenced to 12 months’ imprisonment, and in addition a $3,000 fine. In sentencing the appellant the magistrate said among other things this: (a) that his previous record and the circumstances of the case showed that the appellant was a “practised thief” and (b) that he could afford to pay a fine from the substantial sum of money found in his possession. The last remark was prompted by the fact that at the time of arrest the appellant had on him $8,200 in cash.

4. The magistrate’s jurisdiction to deal summarily with the charge of theft is conferred by Section 92 of the Magistrates Ordinance Cap. 227 which reads :

“Whenever any person is accused before a permanent magistrate of any indictable offence except an offence specified in Part I of the Second Schedule, the magistrate, instead of committing the accused for trial before the court, may deal with the case and convict the accused summarily, and on conviction may sentence the accused to imprisonment for 2 years or to a fine of $10,000:

Provided that nothing in this section shall affect any greater punishment specifically provided for in any other ordinance.”

5. On this appeal Mr. Hung on behalf of the appellant raises this simple but fundamental point : On its face the two forms of punishment which the magistrate is empowered by Section 92 to impose is in the alternative. He can either punish the appellant by a sentence of imprisonment or by imposing a fine, but not both. This is to be contrasted with the English Magistrates Court Act 1980, Section 32(1), where the words “or both” appear, making it clear that the power of imprisonment and fine is cumulative. To reinforce his argument Mr. Hung has drawn attention to Section 97 of the Magistrates Ordinance which reads :

“When a magistrate has authority under any enactment to impose imprisonment for an offence and has not authority to impose a fine for that offence, a magistrate may notwithstanding, if he thinks that the justice of the case will be better met by a fine than by imprisonment, impose a fine of $10,000:

Provided that the magistrate shall not impose on the offender, in default of payment of the fine, any greater term of imprisonment than that to which such offender would have been liable under the enactment authorizing the said imprisonment.”

6. This section tends to suggest that, in the eyes of the legislature, the magistrate should consider either imprisonment or fine but not both.

7. When the powers of the magistrate under section 92 of the Magistrates Ordinance are contrasted with those of the High Court and District Court, the position becomes even clearer. Section 113A of the Criminal Procedure Ordinance Cap. 221, where relevant says :

“Where a person is convicted of any offence …….          the court may …… impose a fine in lieu of or in addition to dealing with such person in any other way in which the court has power to deal with him, subject however to any enactment requiring him to be dealt with in a particular way.” (emphasis added)

8. Added to all these is the stark point that in section 3 of the Interpretation and General Clause Ordinance Cap. 1 the word “OR” is to be construed disjunctively. It is not possible in these circumstances to construe section 92 of the Magistrates Ordinance as if the magistrate had power to impose a fine on top of a sentence of imprisonment. Astonishing though it may seem that in the history of Hong Kong’s jurisprudence such an argument has not emerged before, in my judgment the point taken by Mr. Hung is good. The magistrate had no jurisdiction to punish in the way he did.

9. The magistrate in imposing a fine of $3,000 said that the appellant was a “practised thief” and that in view of the substantial sum of money found in his possession the appellant could afford to pay a fine. This is separately challenged on appeal.

10. The appellant had two previous convictions for theft, one in December 1989 and the other in November 1990. Nothing suggests that the $8,200 found on him represented the fruits of theft. The fact that he resided in Shek Kong Vietnamese Refugee Camp at the time of his arrest could account for his carrying on his person as a matter of security all his available cash resources. There may not have been places in the camp where he could with security have hidden $8,200 in cash. Moreover, the fact that he had stolen Miss Cheng’s wallet in August 1992, coupled with his two previous convictions of theft, does not warrant necessarily the conclusion that he was a practised thief, though the circumstances might be thought suspicious.

11. In setting aside the magistrate’s sentence which I hereby do, I have power under section 119(1) (d) of the Magistates Ordinance to exercise an original jurisdiction in place of the magistrate’s. The sentence of 12 months’ imprisonment is hereby confirmed. The fine of $3,000 is set aside and the money is to be returned to the appellant.