LAW REPORT: Sentence for redefined offence was fair

LAW REPORT v 6 September 1995
Chan (Chi Hung) v The Queen; Privy Council (Lord Keith of Kinkel, Lord Mustill, Lord Lloyd of Berwick, Lord Nicholls or Birkenhead and Lord Steyn) 26 July 1995

Where a statutory offence was reformulated after a defendant had committed it but before he was sentenced, the question whether he should be subjected to the old or new penalty was to be answered not by comparing the defining elements of the old and new offences but by measuring the defendant's conduct against those elements.

The Privy Council unanimously dismissed an appeal by the defendant, Chan Chi Hung, against the decision of the Hong Kong Court of Appeal ([1993] 3 HKPLR 243) dismissing his appeal against concurrent sentences of three and a half years' imprisonment for two offences to which he had pleaded guilty.

The offences involved (i) the possession of forged credit cards, contrary to section 76(2) of the Crimes Ordinance (Cap 200), which carried a maximum sentence of seven years' imprisonment, and (ii) the possession of a blank embossed card intended for the forgery of credit card sales slips, contrary to section 76A(1), for which the maximum sentence was 14 years.

After the offences were committed, but before the defendant pleaded guilty to them, section 76(2) was replaced by section 75(1)(2) of the Crimes (Amendment) Ordinance 1992, which provided a maximum sentence of only three years for the possession of a false instrument, but 14 years for possession with the specific intent of inducing another, to his prejudice, to accept it as genuine. Section 76A(1) was replaced by section 76(1)(2), which provided for a maximum of three years for the possession of material designed for the making of a false instrument, and 14 years for possession with specific intent.

Article 12(1) of the Hong Kong Bill of Rights (reproducing article 15.1 of the UN International Covenant on Civil and Political Rights) provided:

No one shall be held guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence . . . at the time when it was committed. Nor shall a heavier penalty be imposed than the one that was applicable when the criminal offence was committed. If, subsequent to the commission of the offence, provision is made by law for the imposition of a lighter penalty, the offender shall benefit thereby.

G.J.X. McCoy and P.Y. Lo, both of the Hong Kong Bar (Haldanes) for the defendant; A.A. Bruce, of the South Australian Bar, Senior Assistant Crown Prosecutor, Hong Kong, and T.H. Casewell, Senior Crown Counsel (Macfarlanes), for the Crown.

Lord Mustill said there was a conflict of opinion as to the application of the third sentence of article 12(1) when the statute defining the offence had been reformulated between the occurrence of the criminal acts and the imposition of sentence.

It was argued for the defendant that the court should identify the elements of conduct which defined the old offence and find the new offence whose elements substantially corresponded. In this case, the aggravated offences under the new sections 75(1) and 76(1) did not fit because they called for specific intent which was not previously required, so the defendant could only be sentenced to a maximum of three years for simple possession.

Though appealing, that argument was in their Lordships' judgment incorrect. Except where the new legislation was a simple re-enactment of the old, such a comparison of one category of offence with another would often be impossible. Moreover, it would relieve the defendant from the increased burden of the new regime and give him a benefit which he would not have enjoyed under the old.

The first two sentences of article 12(1) directed attention to what the individual person's actual conduct, which was measured against the elements required to constitute whatever offence might be relevant; the third sentence must be assumed to have a similar focus.

The question was not how the new definition of the offence corresponded to the old, but how the defendant would have stood had he been convicted and sentenced for what he did under the new law rather than the old.

On the agreed facts it was plain that his conduct fitted the aggravated offence now carrying a maximum of 14 years, rather than the seven and 14 years which the sentencing judge assumed to be appropriate, and he had suffered no injustice.

Paul Magrath, Barrister