ATTORNEY GENERAL v. CHEUNG CHOI-LAN
HTML content
CACC000079/1978
| In the Supreme Court | |
| Criminal Appeal | |
| 1978 No. 79 |
| BETWEEN | ||
| Attorney General | Appellant | |
| and | ||
| CHEUNG Choi-lan | Respondent |
-----------------
Coram: Cons, J.
Date of Judgment: 16th March 1978.
-----------------
JUDGMENT
-----------------
1. On the 6th October last year the respondent was convicted under sections 5 and 7 of the Gambling Ordinance (Ord. 7 of 1977), that is of the offences of operating a gambling establishment and of engaging in bookmaking. Apparently she operated from her own home, a flat in King's Road, by taking telephone bets on greyhound races. She had two telephones. The learned magistrate fined her $2,000. Just over two weeks later the Attorney General applied to the same magistrate for an order directing the Hong Kong Telephone Co. Ltd. to disconnect those two telephones and not to provide the respondent with any other telephone and not to provide the respondent with any other telephone for a fixed period not exceeding twelve months. The Attorney is given a general power to make such an application by section 21 of the Ordinance. The question is whether he must exercise that power at the time of the conviction and sentencing of the offender in question or whether he may leave the application to a later time more convenient to himself. The magistrate took the former view and refused jurisdiction in the present instance. The Attorney wishes to challenge the correctness of that decision. The section in question reads as follows:
"21. (1) Where a person is convicted of an offence under section 5, 7 or 8 the court may on the application of the Attorney General and in addition to any penalty imposed for the offence make an order, which shall continue in force for such period not exceeding 12 months as the court may specify -
| (a) | requiring the Hong Kong Telephone Company Limited to disconnect any telephone service provided to such premises used in or in connexion with the commission of that offence as may be specified in the order; | ||
| (b) | requiring the Hong Kong Telephone Company Limited to disconnect any other telephone service provided to the defendant; | ||
| (c) | prohibiting the Hong Kong Telephone Company Limited from providing to the defendant any further telephone service while the order is in force. |
| (2) The Registrar of the Supreme Court shall notify the Hong Kong Telephone Company Limited of the making of an order under subsection (1) and the Company shall take such steps as may be necessary to give effect to it. | ||
| (3) An order under subsection (1) shall have effect notwithstanding that the defendant is not the subscriber to the telephone service or a party to the agreement with the Company." |
2. The magistrate relied on two things. The first was a literal interpretation of the section with emphasis placed on the word "is" in the phrase "where a person is convicted". The second was the principle that a person should not be placed in double jeopardy for the same incident.
3. Mr. Little, who appears on behalf of the Attorney, but has also very fairly put forward the case for the respondent who is unrepresented, argues strongly that there is no double jeopardy because the order sought is not a penalty; if it were the draftsman would have included the word "other" in the phrase "in addition to any penalty"; and orders of the court which have financial consequences for a defendant are not necessarily classified as penalties, for example, an order to pay towards the costs of the prosecution. He put the matter as one of crime prevention rather than punishment and drew attention to the wide ambit of the provision which by virtue of subsection (3) might well apply to a person involved in no way whatsoever with the offence. As to the actual words of subsection (1) it is quite common in statutes for the present tense to include the past. Furthermore the Legislature would be well aware that neither the Attorney nor Crown Counsel on his behalf would normally appear in the magistrate's court on the trial of charges such as those referred to.
4. I understand that this appeal is brought principally to ascertain the correct procedure for the future. But I must confess that as I see it the practical result will be much the same in either event. If the magistrate is correct the Attorney will by some administrative system ensure that on every conviction an adjournment to take instructions is sought before sentence is passed. If the other view is correct I would expect magistrates of their own volition to postpone sentence until the Attorney has given some indication of his intentions.
5. There is force in both arguments put forward, but on consideration I have come to the conclusion that the argument adopted by the magistrate is to be preferred. The use of the words "where a person is convicted" together with "in addition to any penalty imposed for the offence" in my view gives some indication that it is intended that the order should be made at the same time. And whatever its strict juristic nature it is an order that could have serious consequences for the individual. I think the Legislature had this in mind when it limited applications to the Attorney General. Compare, for example, section 26, which gives a much wider power to forfeit monies used for gambling or gambling equipment. It is something a magistrate ought to take into consideration when assessing the correct fine or term of imprisonment. In Reg. v. Talgarth Justices(1) Lord Widgery, C.J., said this:
"It would ...., in my judgment, be bad sentencing practice to deal on different occasions with different elements in the disposal of a single case. Very often forfeiture or disqualification is related to penalty, and it is dangerous, to say the least of it, to embark on the disposal of any case without having all the matters available for decision by the same court at the same time."
If the Legislature had intended to authorise what would otherwise on the face of it be a dangerous practice I think it would have done so in clearer terms than it has used here. To the question.
"Whether a magistrate has jurisdiction to make an order under section 21 (1) of the Gambling Ordinance where the application for such order is made after conviction and sentence of the offender whose conviction gives rise to the application being made?"
my answer is "No."
Representation:
Mr. Little, Senior Crown Counsel, for the appellant.
Respondent in person.
(1) (1973) 2 All E.R. 717 at 719