In law, fact is sometimes stranger than fiction
A judge’s decision to set aside a conviction for smoking in a no-smoking area meant a defendant lost his conviction despite having already lost his appeal against that conviction
Fact, they say, can be stranger than fiction, and the law is no exception.
In 2014, in the Court of First Instance, an appeal against a magistrate’s conviction had an extraordinary outcome. The judge’s ruling raised the question, worthy of AP Herbert, of when an unsuccessful appeal against conviction is nonetheless successful. The answer, quite simply, is when the appellant’s sentence disappears.
In law, a conviction comprises two distinct elements: a finding of guilt followed by a sentence. Until such time as there is a sentence there is, accordingly, no conviction. If, therefore, an accused is prosecuted again for an offence of which he has already been found guilty but not sentenced, he cannot raise the defence of autrefois convict (already convicted), as he has no conviction recorded against his name.
Mr D, who was convicted of smoking in a non-smoking area, for which he was fined HK$2,000, appealed unsuccessfully against his conviction. But, although the judge held that there was “no basis whatsoever to disturb the conviction”, he nonetheless decided to interfere with the sentence, against which Mr D had not in fact appealed.
The judge quashed the sentence, stating that Mr D “does not have the funds to be able to pay this fine”. Mr D was, in any event, in prison for a long time for another offence, and “even if a small fine was imposed and he defaulted on it, a short term of imprisonment would most likely be ordered to be served concurrently”.
Instead of substituting a nominal penalty, such as an absolute discharge, which the prosecutor might have submitted was the proper course, the judge simply set aside the sentence in its entirety. This, legally, meant that Mr D was no longer convicted of the offence, as he had become “un-sentenced”.
Therefore, Mr D, without his sentence, actually lost his conviction, despite having already lost his appeal against conviction. But he is not likely to have got out the champagne.
As Mr D appeared in person, without a lawyer to represent him, he is, presumably, wholly unaware that, legally, he no longer has a conviction, whatever his criminal record may say. The Criminal Records Bureau, likewise, may not appreciate that Mr D’s conviction no longer stands, and should be expunged from its records. Everyone, in all probability, is wholly in the dark.
However, the Director of Legal Aid is now aware of the position, and will hopefully be considering remedial action. If the conviction has indeed gone, Mr D should be notified, and records adjusted accordingly. Watch this space.
Grenville Cross SC is a criminal justice analyst