HKSAR v. O'Brien Michael John Patrick

CACC 187/2000

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 187 OF 2000

(ON APPEAL FROM DCCC NO. 908 OF 1997)

_________________________________

REASONS FOR JUDGMENT

_________________________________

Wong JA: (giving the judgment of the court)

1. On 13 October 1997, the applicant pleaded guilty before Judge H.C. Wong in the District Court to one charge of theft. He was sentenced to 6 months' imprisonment, suspended for 2 years plus a fine of $2,000. We are only concerned with the partial activation of the suspended sentence on 5th May, 2000. The facts of the theft are not material and we do not need to refer to them. What happened subsequent to the suspended sentence is usefully set out in a chronology prepared by Mr. Alex Lee, Counsel for the Respondent. The following events took place.

"17.8.1999	-	The applicant committed the offence of possession of offensive weapon. He was detained by the police for one day and then granted bail.
20.12.1999	-	The applicant was sentenced after trial for the possession of offensive weapon offence at Court 5 of the Eastern Magistracy. The learned magistrate imposed 4 months' imprisonment (ESCC 2684/99). The learned magistrate also activated 2 months of the suspended sentence, one month of which was to run consecutive to the sentence of the possession of the offensive weapon.
21.12.1999	-	The learned magistrate on her own initiative reviewed her decision to activate the suspended sentence. The hearing of the review was fixed on 24.12.1999. Such review was done pursuant to section 104 of the Magistrates Ordinance. The learned magistrate then issued a body order for the applicant to be brought up in the District Court on 7.1.2000 for the question of activation of the suspended sentence.
24.12.1999	-	The applicant was represented by duty lawyer. The learned magistrate set aside her order to activate the suspended sentence. The 4 months' imprisonment for the possession of offensive weapon remained. Later on the same day, the applicant gave a notice to appeal to a judge against conviction of the possession of offensive weapon. The applicant appeared before the same learned magistrate and applied for bail pending appeal. The magistrate granted bail and cancelled the body order that she had earlier issued.
28.3.2000	-	The appeal against conviction of the possession of offensive weapon was heard before Beeson J. The appeal was dismissed.
4.5.2000	-	The prosecution applied for a body order to bring the applicant to the District Court to deal with the activation of the suspended sentence.
5.5.2000	-	Applicant was brought to the District Court before H.H. Judge Wong for the activation of the suspended sentence. "

2. The upshot was that Judge H.C. Wong activated three months of the suspended sentence out of the original suspended sentence of 6 months. She ordered two months of the three months' sentence to be served consecutively to the sentence of 4 months imposed on the applicant for the offence of possession of offensive weapon. In other words, the applicant was one month worse off than he otherwise would have been under the order of the magistrate made on 20 December 1999. It is against the order made by Judge H.C. Wong he now seeks leave to appeal.

3. There was only one ground of appeal in the original perfected ground of appeal and it was:

"The order by Her Honour H.C. Wong on 5 May 2000 for a suspended sentence on the Applicant to take effect is null and void as the sentence had previously been ordered to take effect on 20 December 1999 in Magistracy Proceedings E/26845/99."

In fact, the first skeleton argument prepared by Mr. Ross, who appeared for the applicant before us, exclusively dealt with this point. Mr. Ross informed us that at the time of the preparation of the first perfected ground of appeal and the skeleton argument, he and those instructing him were not aware that the magistrate had on 24 December 1999 set aside her order to activate the suspended sentence. Consequent upon becoming so aware, amended perfected grounds of appeal were filed on 7 June 1999 together with a second skeleton argument. A second ground of appeal was added and it was in these terms :

"Her Honour HC Wong acted contrary to principle when Her Honour ordered on 5 May 2000 for a suspended sentence on the Applicant to take effect :

(a) on terms different from the terms imposed on the Applicant when the same suspended sentence was ordered to take effect on 20 December 1999 in Magistracy Proceedings E/2684/99; and

(b) without taking account of the terms imposed on 20 December 1999."

4. Despite his admission that the first ground of appeal was based on a wrong factual basis, Mr. Ross did not see fit to formally abandon that ground although he advanced no argument in support. In our judgment, this ground is not arguable in the light of what took place on 24 December 1999 when the magistrate set aside her order of 20 December 1999. Under s.104 of the Magistrates Ordinance, Cap. 227, a magistrate is empowered to review a decision that he or she has made and the setting aside of the order to activate the suspended sentence in this case was an exercise by the magistrate of this power. At the time of the review, the magistrate might have been under the mistaken belief that she had no power to activate the suspended sentence and the matter had to be dealt with by the court which originally imposed the suspended sentence. We have been told that this was in fact the situation. Be that as it may, the order setting aside the earlier order of the magistrate to activate the suspended sentence was a valid order and it was not null and void as submitted.

5. The second ground of appeal is also without substance and can be disposed of shortly. Once the magistrate's order to activate the suspended sentence was set aside and the applicant was brought before the original sentencing court, it was open to that court to deal with the matter afresh without any regard to the terms imposed by the magistrate in the order that no longer existed. If Judge H.C. Wong had been minded to activate the whole suspended sentence of 6 months as she was perfectly entitled to do, the applicant could not possibly have good ground for complaint. It would be a valid order and is not void for want of jurisdiction.

6. However, we are invited to mitigate the strict letter of the law and instead look at the factual background of this application. It has also been brought to our attention that Judge H.C. Wong made the same mistake as the magistrate did and erroneously believed that the magistrate had no power to activate the suspended sentence which she imposed in 1997. The relevant provision dealing with suspended sentence is s.109D of the Criminal Procedure Ordinance, Cap. 221. It may be of some assistance to judges and magistrates who may be called upon to deal with the issue if we are to reproduce s.109D in its entirety. The section provides:

"(1) An offender may be dealt with in respect of a suspended sentence by any court before which he appears or is brought.

(2) Where an offender is convicted by a magistrate of an offence punishable with imprisonment and the magistrate is satisfied that the offence was committed during the operational period of a suspended sentence passed by the Court of First Instance or the District Court - (Amended 25 of 1998 s. 2).

(a) the magistrate may, if he thinks fit, commit him in custody or on bail to the court having power to deal with him in respect of the suspended sentence; and

(b) if he does not, shall give written notice of the conviction to the clerk of the court by which the suspended sentence was passed.

(3) The court to which a magistrate commits an offender under subsection (2) shall be the court by which the suspended sentence was passed, except that the magistrate may commit him to some other court if, having regard to the time when and the place where he is likely to be dealt with in respect of the suspended sentence by the court by which that sentence was passed, it would be more convenient that he should be dealt with by that other court.

(4) For the purpose of this section and section 109E a suspended sentence passed on an offender on appeal shall be treated as having been passed by the court by which he was originally sentenced. "

7. "Court" in this context includes the District Court and a magistrate (s.109G).

8. It is clear that the magistrate had the power to activate the suspended sentence herself under these provisions. It is unfortunate that both the magistrate and the judge were under the same erroneous belief that the magistrate had no such power. Had it not been for this erroneous belief, the original order of the magistrate to activate the suspended sentence, which was a good and valid order, might not have been set aside and the applicant would not have received a sentence of an additional month. The applicant may as a result feel a sense of grievance. This has caused us anxiety. It is only on this narrow basis that we have decided, but not without some reluctance, to interfere. However, the deciding factor was that Judge H.C. Wong gave no reason for departing from the effect of the magistrate's original order.

9. In the result, we will grant leave and treating the hearing of the application as hearing of the appeal, allow the appeal and reduce the sentence of three months to one month in order to give effect to the original order of the magistrate that the applicant should serve an additional month in prison for his breach of the suspended sentence. We further order that this sentence of one month will run consecutively to the sentence of 4 months imposed on the applicant by the magistrate for the possession of offensive weapon in Case No. ESCC 2684/99.