THE QUEEN v. VANEZZA R. RAMIREZ

Magistracy Appeal No. 1490 of 1989

------------------

HEADNOTE

------------------

If a magistrate fails to comply with the requirements of section 109A of the Criminal Procedure Ordinance, Cap. 221, the High Court hearing an appeal against sentence will obtain the necessary information - either for itself or, if the matter is remitted below, for the Magistrate's Court.

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO. 1490 OF 1989

------------------

JUDGMENT

-----------------

1. This is an appeal against sentence. The appellant is a 17 year old girl. On November 11, 1989, she appeared before Mr M.D. Hill sitting in the Magistrate's Court at Western on two charges of possession of an unlawfully obtained travel document, contrary to section 42 (2) (c) (i) of the Immigration Ordinance, Cap. 115.

2. The background to this matter is a "racket" which operates in this fashion : Filipinas wishing to enter Japan unlawfully are provided a service for that unlawful purpose. The service is one under which men masquerade as their boyfriends and carry for them the bogus passports which they use. In the present case, two men masquerading as boyfriends under that system and two Filipinas who were being provided with services thereunder were arrested while in transit in Hong Kong. They were all dealt with by Mr Hill on the date which I have mentioned. They all appealed against their sentences. I have dealt with the appeal of the two men. Another Judge has dealt with the other girl's appeal. And I have now to deal with the present appellant.

3. She is, as I have indicated, only 17 years of age. Before anyone in the age bracket within which this young lady falls may be sent to prison, the Court has to be satisfied that no other method of dealing with him or her is appropriate. That is provided in section 109A of the Criminal Procedure Ordinance, Cap. 221, which deals with persons "of or over 16 and under 21 years of age."

4. Subsection (1) of that section provides that - in the case of any offence other than an excepted offence - for the purpose of determining whether any method other than imprisonment is appropriate, the court "... shall obtain and consider information about the circumstances, and shall take into account any information before the court which is relevant to the character of such person and his physical and mental condition". The general practice of the courts is to do all of that by sending for a variety of reports. In the present case, no report was sent for, and no inquiry of any kind was made. The offence here in question is not an excepted offence. What offences are to be excepted is a matter for the Legislature. The Courts cannot treat any offence however grave as an excepted offence when it has not been made one by statute.

5. Whether you consider the requirement which I have just mentioned mandatory or directory seems to me to make no difference in circumstances such as these. I am sitting on appeal. I do not say that imprisonment imposed without complying with section 109A amounts to false imprisonment; but I am not concerned with a complaint of false imprisonment. I am exercising an appellate jurisdiction. It is my duty to consider whether the sentence passed is right. It seemed to me that the proper course was to remit the matter to the Magistrate's Court to be dealt with by another Magistrate and to direct that all relevant reports be made to the Magistrate before whom the matter was to come. So I put that to the appellant and counsel for the Crown. The appellant favours that course; and counsel for the Crown supports it. I take that course. A sentence passed without complying with the requirements of section 109A is not "invalid" or "bad" as those terms are used in the courts. But it is open to review. I could obtain the information and pass sentence in light of the same or I could obtain the information for the Magistrate - to save time - and leave it to him to sentence in light of the same. I choose the latter course. It seems the better course in all the circumstances.

6. The next question is what to do with the appellant during the adjournment which has now become necessary. In all the circumstances, she very realistically recognised that bail would not do her any good. She would have no means of looking after herself while in Hong Kong, and she preferred to remain in custody during the adjournment. I have been informed that the place where she is now imprisoned is also the place where persons in her situation are kept in custody pending trial. Therefore, by leaving her where she is during the adjournment, not only am I doing what she prefers, but I am not perpetuating imprisonment in violation of section 109A.

7. The net result is that the matter is remitted to the Magistrate's Court. I direct that it come before another Magistrate. The remission is accompanied by the opinion of this Court that section 109A applies and that its requirements have to be complied with. Meanwhile, I send for all relevant reports which, as I understand it, means here a Probation Officer's report and a Training Centre report. The appellant will remain in custody where she is meanwhile. I hope that these reports will be available as soon as possible. They should be made to the Magistrate's Court and placed before the Magistrate who will sentence the appellant. That appears to cover what has to be done in these unfortunate circumstances. I would like to acknowledge the assistance which I have received from Mr Wong who appears for the Crown and who supports the course which I feel it is necessary to take.

                [The foregoing is a transcript of the extempore judgment which I delivered on the 25th of last month. Since then counsel for the Crown has - through my clerk - drawn my attention to the judgment delivered on August 3, 1987, in Magistracy Appeals No. 439 and 469 of 1987 in which my brother Wong said (at p.5) that ".... it is not obligatory upon magistrates to call for background reports before sentencing young illegal immigrants." Counsel for the Crown offered to assist me by way of submissions on that authority if I desired the same. I do not; and I decline the offer. (It is hardly necessary to say that I would not in any event have accepted it without first giving the appellant an opportunity to be heard on whether it ought to be accepted.) Even assuming that it were open to me to re-open the matter, I would decline to do so. For one thing, the  present appellant is not an "illegal immigrant". But there are more fundamental considerations. It would appear that the decision of the Court of Appeal in Morris v. Crown Office   [1970] 2 QB 114 was not drawn to my brother Wong's attention. That case concerned, inter alia, section 17(2) of  the Criminal Justice Act, 1948, on which English provision our section 109A(1) appears to be based since they are in all material respects identical. At pp. 129H - 130A, Lord Justice Salmon (as he then was) said this : "If a judge fails to obtain or pay attention to the necessary information before sentencing, his sentence would not thereby be invalid. It would only mean that the appellate court would obtain the necessary information and review the sentence in light of it." That is my approach exactly - save that I have taken advantage of the special powers of remission possessed by this Court when hearing appeals from the Magistrate's Court. It is to be noted that, his dictum notwithstanding, that was also my brother Wong's approach. His judgment opens thus : "These two appeals came before me on 20th July, this year when I acceded to an application by counsel for the appellants, which was supported by counsel for the Crown, to adjourn the matter until this morning pending reports from a probation officer and the Commissioner of Correctional Services. These reports are now to hand and I have considered them." Thus, while I would not agree with his dictum is it means that section 109A can be ignored - and would consider it at variance with authority if it did - I am in respectful agreement with the course which my brother Wong in fact followed.]