HO BING CHUN v. THE QUEEN

CACC001240/1976

 

IN THE SUPREME COURT
	Criminal Appeal
	1976 No. 1240

 

BETWEEN
	HO BING CHUN	Appellant
	and
	THE QUEEN	Respondent

Coram: Trainor, J.

Date of Judgment: 4th January, 1977.

 

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JUDGMENT

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1. On the 23rd January, 1976 the appellant was convicted of burglary and sentenced to 6 months imprisonment suspended for 1 year. On the 10th August he was convicted and sentenced to 3 years imprisonment for trafficking in dangerous drugs and 9 months for possession of dangerous drugs for the purposes of unlawful trafficking, the sentences to be served concurrently, and the learned magistrate activated the sentence imposed on the 23rd January and ordered it to be served consecutively to the other sentences. The appellant appealed against his conviction and sentence and his appeal was dismissed.

2. The appellant sought and was granted leave to appeal out of time against the 6 months imprisonment imposed in January on the basis that, as a result of the suspended sentence being activated, the total of imprisonment, 3 years and 6 months, is in excess of the magistrate's jurisdiction. The question of the magistrate's jurisdiction, I understand, was not canvassed on the earlier appeal. The case appeared before me on that basis.

3. May I say at the outset that I am grateful, and so well might the appellant be, for the considerable assistance that I received from Mr. Sharwood, Counsel for the Crown.

4. The proviso to Section 57 of the Magistrates Ordinance reads:

" .... where two or more terms of imprisonment imposed by a magistrate are ordered to run consecutively the aggregate of the said terms of imprisonment shall not in the case of a special magistrate exceed 12 months and in the case of a permanent magistrate exceed 3 years ...."

5. Section 109B of the Criminal Procedure Ordinance provides for the imposition of suspended sentences. Sub-section 5 (a) of that section provides that:

"a suspended sentence which has not taken effect under section 109C shall be treated as a sentence of imprisonment for the purposes of all Ordinances except ...",

the other Ordinances mentioned in the sub-section, are irrelevant to this case. Section 109C is the section that makes provision for activating sentences that have been suspended and sets out the various orders the activating magistrate may make, e.g. Order that the suspended sentence shall take effect with the original term of imprisonment unaltered. Sub-section 6 of the section reads:

"For the purposes of any ordinance conferring rights of appeal in criminal cases any such order made by a court shall be treated as a sentence passed on the offender by that court for the offence for which the suspended sentence was passed".

It seems clear to me from that sub-section that the activated sentence of 6 months imprisonment is to be considered as if it were a sentence of imprisonment imposed by the activating magistrate. The result therefore is that the magistrate imposed sentences of imprisonment to be served consecutively the aggregate of which exceeds the jurisdiction conferred on him by Section 57 of the Magistrates Ordinance.

6. The cumulative effect of sentences imposed on conviction and activated sentences was considered in a somewhat different context in the case of R. vs. KAN Yat-fan 1966, H.K.L.R. 301. In that case the appellant was convicted and sentenced to a total of 28 months imprisonment. The magistrate who convicted him sent him back to another magistrate who had made an order of conditional discharge in an earlier case. That magistrate imposed a sentence of 18 months imprisonment. That sentence together with the 28 months imprisonment imposed by the second magistrate was cumulatively in excess of a magistrate's jurisdiction. On appeal Huggins, J., as he then was, held that as the sentences and the activated sentence had been imposed by 2 different magistrates no exception could be taken to what had been done, although he did reduce the aggregate of the sentences. He had this to say: "The question is this: do the words 'a magistrate' in the proviso mean the same magistrate or do they cover a case where terms of imprisonment are imposed by different magistrates. I am satisfied that, on a fair interpretation of that proviso, they are restricted to a case where sentences are imposed by a single magistrate." In the case before me having regard to Section 109C Sub-section (6) I am satisfied that the sentences imposed and the sentence activated by the "single magistrate" were in excess of the magistrate's jurisdiction and I allow the appeal, and quash the order activating the 6 months imprisonment.

 

Representation:

Appellant in person.

Mr. Sharwood, Crown Counsel for Redpondent.