Li Mau Lam v. The Queen

CACC000258/1981

-----------------

Coram: Cons, J. A. , Silke and Barker, JJ.

Date of Judgment: 3rd July 1981

-----------------

JUDGMENT

-----------------

Cons, J. A. :

1. The applicant in this proceeding is one of four men, who in July 1979 hijacked a coach full of Japanese tourists. The coach had stopped at a what is called a "look-out" in the Lung Cheung Road for the tourists to admire the view and take photographs as they wished. The four men appeared as the tourists were getting back into the bus and one of them held a 12" melon knife. Having got the tourists back into the bus they made the driver drive on while they collected cash and securities from the tourists, which amounted in total to some HK$47, 000 together with a number of watches, necklaces and rings. Then they stopped the bus and made good their escape.

2. It was not until March 1980 that the police received information in relation to this crime. They then managed to recover, from the wife of one of the suspected culprits, one of the watches stolen. About June of the same year further investigations led to the applicant, who at that time was serving a prison sentence for attempted theft, the sentence being one of 18 months. It was not his first offence, although he is still only 24. In 1975 he was convicted of theft and in 1976 possession of an offensive weapon and six counts of robbery. When charged with the present offence he admitted his part straight away and in due course pleaded guilty in the Kowloon District Court, where he was sentenced to 5½ years' imprisonment.

3. He applied to the single judge for leave to appeal, putting as his grounds his genuine remorse, evidenced by his confession, and complaining that the sentence had been made consecutive to that which he was already serving, and apparently also complaining that the totality of the two sentences together was too great.

4. As to the question of the sentences being made consecutive we have no hesitation in agreeing with the learned District Judge. They were quite separate offences and the sentences likewise ought to be kept separate. We accept the "principle of totality" put forward by Mr. Barretto, but we are not persuaded that in the present circumstances the total sentence is manifestly excessive.

5. When passing sentence the District Judge took into account the plea of guilty. A plea of guilty is usually accepted as an indication of remorse and it is backed up in this instance by the applicant's ready confession when approached by the police. It is also suggested to us that he in some way assisted the police with their investigations. However, although he at one stage indicated that he was willing to do so, there is nothing in the record to show that he was ultimately called upon.

6. Remorse is always a factor to be considered when passing sentence. And the genuine desire to start afresh and to remain in the future within the accepted bounds of society is something that needs to be encouraged. At the same time judges must not lose sight of those factors which are needed to discourage crime, namely, punishment and deterrence.

7. With only those factors in mind we feel that the proper sentence for this offence would have been 7 years. Although in some ways it is akin to the armed invasion of private premises for the purpose of robbery, which merits a general sentence of 6 years, it is more serious. It is not too difficult to imagine the disastrous consequences that could have ensued had the driver, through fear or panic at the conduct of the robbers, involved the coach, with its full load of passengers, in an accident. And we also have to bear in mind that the victims, being strangers in a foreign land, were particularly vulnerable.

8. The District Judge, by giving a sentence which is 1½ years shorter than that period, has made considerable allowance for the remorse shown by this applicant. We cannot say that his sentence was excessive.

9. In refusing leave to appeal the single judge directed that 30 days of time already spent in custody should not count towards the sentence. The point has been taken before us that he was wrong to do so.

10. Sec 83W(1) of the Criminal Procedure Ordinance provides that the time during which an appellant is in custody pending the determination of his appeal shall be reckoned as part of his sentence unless the Court of Appeal otherwise directs. Sub-section (2) specifies certain circumstances where the court may not otherwise direct, but apart from that we are not aware of any authorities in this Colony which give guidelines as to how this discretion ought to be exercised. In our view, where an application for leave to appeal has been rejected by the single judge, and is again refused by this court, the time between the communication of the refusal of the single judge to the applicant and the rejection of the renewed application by this court should be directed not to count as part of the sentence unless there is special reason to the contrary.

11. In this particular instance we are disposed not to direct loss of time because the applicant was advised to renew his application to this court on the ground, with which we agree, that the single judge did not appear fully to have considered the grounds which the applicant had put forward.

12. We also think that in this particular instance it is right, as was done in the case of R. v. Howitt⁽¹⁾ to which we were referred, to direct that the order for loss of time be expunged from the order of the single judge. That case is clear authority that a single judge is entitled to direct loss of time even though the application to him is made on the advice of counsel. However, it indicates that when making his decision in this respect the single judge should take into account the fact of that advice. We have some doubts whether in this case he did so.

Representation:

Barretto (D.L.A.) assigned for the Appellant.

Halley, counsel for Crown/Respondent.

(1) 61 Crim. App. Rep. 327