The Queen v. Law Min Ching

HCMA001387/1989

BETWEEN

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Coram: Fuad, V.-P., Kempster & Power, JJ.A.

Date of Hearing: 18 April 1990

Date of Judgment: 18 April 1990

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JUDGMENT

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Fuad, V.-P. (giving the judgment of the Court):

1. These two applications for leave to appeal against sentence imposed in the District Court and these two appeals against sentence imposed in the Magistrates Court (the latter reserved for the consideration of this Court by Wong, J. under section 118(1)(d) of the Magistrates Ordinance, Cap.227) were heard together at the request of the applicant/appellant and with the consent of the Crown. The applicant/appellant Law Min Ching is now aged 22 years and 6 months.

Criminal Appeal No. 387 of 1969

2. On 22nd June 1989 the applicant pleaded guilty in the District Court before Judge D'Almada Remedios to the offence of robbery and was, on 7th July 1989, sentenced to 3 years' imprisonment. The offence was committed late in the night of 18th/19th January 1989 in the New Town Plaza, Shatin. The applicant was with two other men who approached the female victim who was in the company of two friends. The applicant assaulted the victim more than once and made her give $620 in cash to him. He also snatched a gold necklace from the victim's neck - the necklace broke. The three men escaped but the victim identified the applicant at an identification parade about one week later.

3. The judge noted that no weapons had been used but observed that the victim had been put in fear and assaulted. He also noted the applicant's previous record of theft in 1987. He gave credit for the plea of guilty.

Criminal Appeal No. 390 of 1989

4. On 19th July 1989, the applicant was convicted by Judge Moylan in the District Court of false imprisonment and theft and sentenced respectively to 3 years' imprisonment and to 12 months' imprisonment, the sentences to run concurrently but consecutively to the sentence he was already serving. The judge accepted the prosecution case that the applicant and his co-accused had falsely imprisoned a 17-year old girl for some 16 hours between 21st and 22nd January 1989 and during this time had threatened the girl with a knife and a paper cutter and got her to hand over her necklace to him. The girl had been frightened and was in tears, all the time begging to be allowed to go.

5. The judge noted the applicant's age and previous record and the sentence imposed by Judge D'Almada Remedios on 7th July 1989 and said that he saw no reason why the sentences he had imposed should run concurrently with that sentence.

Magistracy Criminal Appeal No. 1387 of 1989

6. On 6th September 1989 the appellant changed earlier pleas of not guilty and pleaded guilty before Mr. A.R. Wright in the Magistrates Court to theft and to resisting a police officer in the due execution of his duty. He was sentenced to 12 months' imprisonment for the theft, to run "consecutively to the present term being served" and to pay a fine of $2,000 in respect of the other charge. He told the Magistrate that he had committed the theft because he needed money to satisfy his addiction to drugs and had been suffering from withdrawal symptoms at the material time.

7. The theft occurred during the early hours of 10th way 1989. A teen-aged couple noticed that a bag belonging to the girl and which had been placed near where they had been sitting was missing. It contained the girl's wallet with $550 in it, her I.D. Card, her student card, her bank pass book and a few other items. Three hours later two police officers to whom a report had been made saw the appellant walking by carrying a bag which fitted the description of the missing one. They stopped him and demanded to see what was in the bag. The appellant pushed one of the police officers away and ran off. He was chased and caught with the help of security staff from the nearby New World Centre. He resisted arrest but was subdued. One of the police officers involved received minor injuries which were treated and which resulted in his getting three days sick leave.

8. In his Reasons for Sentence the Magistrate said that he could find no justification for imposing a sentence to run concurrently with the sentences the appellant was then serving and that he had had regard to the totality principle when assessing the appropriate sentence.

Magistracy Appeal No. 1211 of 1989

9. After he had been dealt with by Mr. Wright, still on 6th September 1989, the appellant was brought before Mr. M.P. Burrell in the same Magistrates Court facing one charge of robbery and another of possessing items of property reasonably suspected of having been stolen or unlawfully obtained contrary to section 30 of the Summary Offences Ordinance. On earlier appearances he had pleaded not guilty to the charges but he admitted them before Mr. Burrell. He was sentenced to 9 months' imprisonment on the robbery charge and to 3 months' concurrent on the unlawful possession charge, the sentences to be consecutive to the other sentences then being served.

10. The robbery offence took place late at night on 6th June 1989 in a street in Yaumati. The victim was pushed against a fence by the appellant and a confederate and robbed of $570 in cash and of his MTR ticket. The robbery had been witnessed by police officers who arrested the appellant and found on him the property he had stolen from the victim. They also found other property in the appellant's possession, which all seemed new, and for which the appellant was unable to account.

11. In mitigation, on behalf of the appellant, the duty lawyer told the Magistrate that the appellant was in a "low mood" due to his taking drugs and needed money to buy more.

12. The Magistrate was told of the sentences (totalling 7 years' imprisonment) which the appellant was already serving and that the offences to which he had just pleaded guilty had been committed while the appellant was on bail pending trial for other offences to which he had later pleaded guilty.

13. The Magistrate noted the appellant's record: he had 4 previous convictions for theft (three fines and a Training Centre Order) and one previous conviction for resisting a police officer in the due execution of his duty (a fine), apart from the convictions which led to the three sentences which are the subject of these applications and appeals.

14. In his Reasons for Sentence, Mr. Burrell said that because of the nature of the robbery and the fact that it was committed whilst the appellant was on bail the inevitably custodial sentence should be consecutive to the present terms put that he had substantially reduced the length (normally between 18-24 months for a 22-year old after a plea of guilty) because of the pleas of guilty and the length of the sentences he was then serving and had also given weight to the principle of totality when passing sentence.

15. The effective sentence the applicant/appellant is now serving is thus 7 years and 9 months' imprisonment which Mr. Nguyen argues is manifestly excessive having regard to the totality principle.

16. The individual sentences were fully justified on the facts, the accused's antecedents and his age. The consecutive sentences imposed by the different Courts were also justified. It is clear that each Court, after the first, was aware of the importance of looking at the overall effect of the sentences being imposed so that the total sentences to be served at any given time were not excessive.

17. Having regard to all the circumstances can it be said that the total of 7 years and 9 months' imprisonment for the applicant/appellant at that stage of his criminal career is excessive? A sentence of that length on a young offender is a very severe one and this Court has given anxious consideration to the question whether justice demanded a reduction. However, we have concluded that the applicant/appellant has demonstrated that he is a determined criminal who has clearly not taken to heart the warnings the Courts have previously given him by the sentences earlier imposed. The offences he committed were serious and he had shown himself to be a menace to the public. After careful consideration we are satisfied that it would he wrong for us to interfere with the discretion exercised by the various Courts who dealt with these offences with the total criminality revealed very much in mind. Therefore, the applications and appeals are respectively refused and dismissed.

Representation:

Mr. P. Nguyen (Director of Legal Aid) for the Applicant/Appellant

Mr. G. Harris (Crown Prosecutor) for the Crown