The Queen v. Chan Hon Kwung

CACC000218/1984

BETWEEN

Coram: Sir Alan Huggins, Ag. C.J., Yang & Barker, JJ.A.

Date of Judgment: July 1984

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REASONS FOR JUDGMENT

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Sir Alan Huggins, Ag. C.J.:

1. The principle upon which this appeal against sentence was based is clear, although it is not always easy to ascertain from the words used by a judge whether he has been in breach of that principle.

2. A defendant should not be punished twice for the same offence. It may, on the other hand, be a mitigating factor that a defendant has not offended before. A judge should, therefore, be careful to decide first what is the appropriate sentence for the offence with which he has to deal. That "sentence for the offence" will take into account all the aggravating factors, e.g. that a robbery was committed by a person armed with a gun. That the defendant is a recidivist is not an aggravating factor. Having decided upon the sentence for the offence the judge should then consider what allowance he can properly make for the mitigating factors, including (if appropriate) that the defendant has a previously clear record.

3. Here the judge said:

"For a first such offence as this the range of sentence would be something like 2½  to 3 years, but since he appeared to be somewhat of a recidivist I felt the time had come to make it clear that the Court will visit serious punishment upon those who repeat crimes of this kind."

That certainly is capable of the construction that the Applicant was being punished again for his previous offences. If two and a half to three years was appropriate for a defendant who could plead a clear record, the "appropriate sentence for the offence" must have been higher. However, we do not think it could have been as high as five years. CHAN Chi-ming v Reg. 1979 H.K.L.R. 491 suggests that the appropriate sentence for the offence of possession of between 30 and 150 grammes of a hard drug for the purpose of unlawful trafficking should be within the bracket three to five years. Here the Applicant was in possession of 35.31 grammes and the "appropriate sentence for the offence" would not have exceeded three and a half years' imprisonment. It follows that either the judge was in breach of the principle stated or he took a manifestly too high starting point.

4. Accordingly we granted the application, allowed the appeal and substituted a sentence of three and a half  years' imprisonment.

Representation: