WONG TUNG HEI v. THE QUEEN

CACC000140/1975

IN THE SUPREME COURT OF HONG KONG

(APPELLATEW JURISDICTION)

 

CRIMINAL APPEAL NO. 140 OF 1975.

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BETWEEN
	WONG TUNG HEI	Appellant
	and
	THE QUEEN	Respondent

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Coram: Pickering, J.

Date of Judgment: 20th March, 1975.

 

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JUDGMENT

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1. The appellant was charged before a magistrate with five charges of burglary and one of taking a vehicle, a bicycle, without the owner's consent. He was sentenced to one year's imprisonment on each of the six charges, the sentences to be served concurrently. He appealed against sentence.

2. Despite all Mr. Bokhary's eloquence there was patently no possible ground for interfering with the sentences upon the burglary charges. The learned magistrate himself became aware after the conclusion of the case that, in sentencing the appellant to one year's imprisonment for the taking of the bicycle, he had exceeded his jurisdiction, the maximum penalty for that offence being, under s. 14(2) of the Theft Ordinance, a fine of up to $500.

3. I clearly had to set aside the sentence of one year's imprisonment but I was then left in the paradoxical position that to substitute that sentence by a legitimate sentence of a fine in any amount at all would place the appellant in a worse position, by effectively increasing his total sentence, solely because of the learned magistrate's oversight. To have imposed a fine would have meant that he would still serve one year's imprisonment and additionally have to pay the fine. Moreover, any term of imprisonment which I imposed in the event of non-payment of the fine, would have had to have been made consecutive to the five concurrent one year sentences because, as has previously been pointed out, to impose a concurrent sentence for the non-payment of a fine is to invite an accused person not to pay the fine. Thus any substituted sentence at all upon the charge of taking the bicycle would have resulted in either the addition to the existing sentence of a fine or, in the event of non-payment of that fine, to an actual increase in the total term of imprisonment. Neither course appeared just and, in the circumstances, I gave the appellant, upon this charge, an unconditional discharge with no conviction recorded.

 

Representation:

Bokhary (D.L.A.) assigned for appellant

Haldane, C.C., for respondent.