Rigby J:

The prisoner in this case pleaded guilty to the charge preferred against him of possession of property reasonably suspected of being stolen or fraudulently obtained, and having thereby committed an offence punishable under s. 29(1) of the Minor Offences Ordinance, 1955.

The brief facts of the case were that he was apprehended by a Police patrol at 6.45 a.m. in possession of a sack containing 2 fowls. Upon questioning by the Police he admitted that he had stolen them; but the Police were unable to trace or find the owners.

The Magistrate sentenced him to four months imprisonment as from the date of his arrest.

The maximum term of imprisonment for an offence under s. 29(1) is three months' imprisonment or a fine not exceeding $100 or both. The prisoner, however, had no less than seven previous convictions over the last seven years, five of which involved dishonesty - and all of which he admitted. When imposing the sentence the learned Magistrate no doubt had in mind s. 29(5) of the Ordinance. That sub-section provides:

29. (5) Any person who -

(a) having been convicted of an offence punishable under this section or under Ch. XII or Ch. XVII of the Penal Code;............

is subsequently convicted of an offence punishable under this section shall be liable to a fine not exceeding one thousand dollars or to imprisonment for a term not exceeding two years or to both such fine and imprisonment.

The case was referred to me by the learned DPP for the purpose of regularising the conviction and sentence. It is clear that the offender should have been charged under s. 29(5) and not s. 29(1) of the Ordinance. I am informed that the offender has now served his sentence, subject to the period of remission he has earned, and was, in fact, discharged from prison on the 20 January 1958. He may, indeed, consider himself extremely fortunate that he was not sentenced to a longer period of imprisonment.

The practical question does arise, however, as to what is the proper sub-section under which an offender with previous convictions should be charged for an offence allegedly committed under this section. If he is charged with an offence rendered punishable under s. 29(5), of necessity, it brings to the notice of the Magistrate the fact that he is a person with one or more previous convictions. This would seem clearly undesirable if the offender claims trial to the charge. On the other hand, if he is charged with the offence alleged in s. 29(1) and thereby rendered liable, upon conviction, to the penalty set out in that section, upon his plea of guilty to the charge preferred under that sub-section, can the sub-section be properly altered after his plea of guilty so as to render him liable to the enhanced penalty under s. 29(5)? It may reasonably be argued, at least as a theoretical proposition, that an offender with one or more previous convictions might well be prepared to plead guilty to the charge as preferred against him for an offence punishable in the manner provided under s. 29(1), yet would be most reluctant to plead guilty to that same offence, if it was brought on a charge rendered punishable under s. 29(5), thereby rendering him liable to the enhanced penalties provided for by that sub-section.

I would venture to suggest that the proper course where a charge is preferred against a person for an offence under s. 29(1), who is known to have previous convictions, is that contemporaneously with the charge a notice is served upon him in words approximate to the following effect:

Take Notice that at your trial on the charge annexed hereto under s. 29(1) of the Minor Offences Ordinance you are liable, upon conviction, to the enhanced penalties provided by s. 29(5) of the said Ordinance by reason of the fact that you have been previously convicted of an offence (a) punishable under this section (or Ch XII or Ch XVII of the Penal Code).*

(* state whichever applicable).

The advantages of such a notice is that on the o