The Queen v. Chan Chor Wing

HCMA000656/1989

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY CRIMINAL APPEAL No. 656 OF 1989

_____________

BETWEEN

_____________

Coram: The Hon. Mr. Justice Barnes in Court

Date of Hearing: 8 September 1989

Date of Delivery of Judgment: 8 September 1989

_______________

J U D G M E N T

_______________

1. The appellant pleaded guilty to two charges, one of possesion of dangerous drugs and the other of resisting arrest and was sentenced to imprisonment for six months in respect of the drugs offence and to three months in respect of the resisting arrest. The magistrate ordered that both sentences were to be served concurrently.

2. The learned magistrate sentenced the appellant in respect of the offences with which I am not concerned on 28th April 1989. Two days before that, the appellant had been sentenced in respect of an offence of possession of dangerous drugs for the puroose of unlawful trafficking to imprisonment for two years. On that same occasion, the learned magistrate activated a suspended sentence passed on the 18th November 1989 in respect of a conviction for possession of dangerous drugs. On that day, the 26th April, he was sentenced to imprisonment for a total period of two years and 9 months.

3. The sentences passed, on the 28th April in respect of the offences with which I am concerned, were ordered to be served as I say concurrently with each other but consecutively with the sentence passed on the 26th April, 1989.

4. Mrs. Panesar who appears for the appellant today has submitted a number of grounds in support of a contention that the sentences passed on the 28th April, 1989 should have been made concurrent with the sentence passed in the 26th April. The basic contention is that if the offences had been dealt with in chronological order of commission, and on the same day a magistrate would have ordered all the sentences to be served concurrently.

5. The recent criminal history of the appellant shows that on the 18th November, 1989 as I mentioned, he was convicted of the offence of possession of dangerous drugs, sentenced to imprisonment for 9 months suspended for 18 months. Within two months, that is on the 17th January, 1989 he committed the offences, the subject of this appeal and then, whilst on bail after having been charged with these offences, he committed the offence of possession of dangerous drugs for which he received the sentence of imprisonment for 2 years.

6. The learned magistrate in her reasons for sentence says that she passed the sentences both on the 26th April and the 28th April, and that in fixing the sentences on the 28th April, she had in mind that the totality principle required her to ensure that the sentences she passed on that day did not exceed what would be a reasonable punishment for the totality of the appellant's criminal behaviour.

7. Given the behaviour of the appellant over the three months as I have just mentioned, it seems to me that the sentence in all of three years and 3 months for that conduct could not be said to be either wrong in principle or manifestly excessive.

8. When passing the sentences on the 28th April, the learned magistrate made a sentence for the offence of resisting arrest concurrent with an offence of possession of dangerous 4rugs. Ordinarily such a sentence would be ordered to be served consecutively. It seems to me therefore that the learned magistrate ordered that sentence to be served concurrently so as to fit the sentences within the totality principle she had in mind. I can see no basis on which I could interfere with the sentences she passed nor with the orders that the made as to how they ought to be served. As the appeal is only against those orders, it is unsuccessful and is dismsised.

Representation:

Mr. D. Kilgour S.A.C.P. for Crown.

Mr. N. Panesar (D. L. A.) for Appellant.