832
LEGAL DEPT 652-5-2690236
500 P09/14
HONG KONG LAW REPORTS
[1987] HKLA
CA
+
By s. 2 of the Interpretation and General Clauses Ordinance (Cap. 1) "magistrate" means:" A
"(a) any person appointed to be 2. permanent, special or marine magistrate under
the Magistrates Ordinance; and
(b) two justices of the peace sitting together, to whom s. 7(2) of the Magistrates
Ordinance applics."
By s. 2 of the Ordinance "Court" for these purposes also includes:
"The High Court acting in the exercise of its criminal jurisdiction."
Section 67A therefore cannot benefit a person who has been committed into custody by a court outside Hong Kong. Nevertheless it does not take away the discretion of a sentencing judge to allow for any period so occasionec, if he think fit, by way of a discount. R. v. Chow Yung Crim App No. 139 of 1985 is an exaniple of where this Court thought that that would be proper; R. 1. Wong Hol Crim App No. 354 of 1985 of where it would not. It is to be noted though, that in neither case did the court purport to lay down a principle and the two decisions may properly be regarded as different exercises of discretion upon different facts. The exercise of the Chief Justice's discretion in the instant case cannot in any way be faulted and the twelve months spent by the respondent in custody in England is properly to be taken into account by way of discount.
Other substantial factors among the many urged on us, such as the hardship of serving a sentence of imprisonment in a foreign land, are the respondent's previous good character and, subject to what has already been said in this regard, his return from England and the pleas of guilty pursuant to the agreement made on his behalf with the Attorney General.
It is strongly contended that the public interest demands a very substantial discount with a view to encouraging those who have engaged in large scale, complex and sophisticated commercial crime to plead guilty rather than contest the prosecution case to a necessarily protracted, and therefore expensive, end. This is another factor which very properly commended itself to the Chief Justice. Most pleas of guilty will attract some discount for a similar reason. In our view, however, that public interest must be balanced against another important public interest, that criminals, or potential criminals, should be deterred from committing offences at all. Sentences cannot be brought below a level which will afford some deterrent against crime and, where substantial fraud or corruption is concerned, preserve the integrity of Hong Kong's commercial reputation.
We find ourselves unable to accept any discount on the basis that for some years the respondent's business life was conducted in the company or at the behest of persons, some of whom were in high authority, who were said to bave demonstrated a deplorable ethical approach to their responsibilities.
At this juncture we should say that we are unwilling to accord any weight to a series of allegations against named individuals mede on the respondent's instructions in order, to some extent, to exculpate him from his own responsibility for his crimes. No attempt was made to have the allegations agreed with the prosecution. No request was made, as might have been expected, that the officer in charge of the case should be called for examination thereon, nor was the respondent himself called to repeat them under oath. We reject the suggestion that the prosecution was under a duty to negative the allegations when first made, or that the allegations are to some extent confirmed by the failure of the prosecution to do so in these proceedings. It was for the respondent to substantiate his allegations. As he has not done so, they remain no more than that.
}
unav
slan
prac
polic
B
B
T:
scnt
con:
thre
sen'
C
C
F
wh
Ne
ye:
OVI
O
Cc
D
E I
LL.
re
W
E
fa
tł
C
F
F
G
H
H
**
и им
Page 135Page 136
7] HKLR - CA