R. v. CHAN YUK CHOI

M.A. No. 390 of 1995

H E A D N O T E

Magistrates' appeal - inability to pay a fine is no justification for imposing a sentence of imprisonment.

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY CRIMINAL APPEAL NO. 390 OF 1995

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J U D G M E N T

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1. This is an appeal from Mr. Andree-Wiltens at the Tuen Mun Magistrates' Court when the Appellant pleaded guilty to two offences, one of taking 5 pieces of iron bars, and a triangular drain cap worth together $250.00. He was sentenced to 4 months and 4 months imprisonment consecutive.

2. He had previous convictions and his last in 1987 was for possession of dangerous drugs when he was fined $1,000.00.

3. The magistrate in the course of mitigation was told that he was a single parent looking after a 6-year old daughter and was on public

assistance, and he should be fined. The magistrate said these words, "I was of the view that the appellant might well still be connected with dangerous drugs.", and he remanded him for a D.A.T.C. report. The magistrate said this, "I do not believe it to be appropriate to fine a person who is receiving the tax payer's money by way of public assistance". That is a remark which, in my judgment, was most unfortunate for the magistrate to pass. It is inappropriate. It is also wrong in principle. A defendant must be sentenced for the offence for which he comes before the court. There is not one law for the rich and one law for the poor. It is wrong to sentence a person to imprisonment not if the offence does not merit prison but because he is not able to pay a fine.

4. Furthermore, the magistrate said, "I feel the only real alternative for me was to take away the liberty of this appellant, as his dependency on dangerous drugs had made him a menace to society." Those were exaggerated words for the magistrate to use, and also the Appellant, as Mr. Di Fazio very properly is prepared to concede, would feel aggrieved that he has been sentenced to prison not for the offence of theft, but for something related to drugs.

5. I do not think that he should have been sent to prison, but in order not to impose an additional punishment, I shall vary the sentence to 1 month's imprisonment on each offence concurrent, a total of 1 month. He has served 2 months, so he can be released now.