The Queen v. Li Hon Man

HCMA000095/1988

IN THE SUPREME COURT OF HONG KONG

APPELLATE JURISDICTION

MAGISTRACY APPEAL NO. 95 OF 1988

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BETWEEN

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Coram: The Hon. Mr. Justice Barnes in court

Date of Hearing: 11th March 1988

Date of Delivery of Oral Judgment: 11th March 1988

Date of Reducing Oral Judgment to Writing: 16th March 1988

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J U D G M E N T

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1. The Appellant pleaded guilty in the magistrates court to charges of driving whilst disqualified and driving without third party insurance. According to the magistrate's statement of findings his traffic record showed that "he had five previous 'multiple' convictions, which included five previous driving without third party insurance, three charges of driving whilst disqualified and one of driving without a licence, and he had been dealt with variously by fine, suspended sentence and short periods of imprisonment.

2. The learned magistrate sentenced him to imprisonment for three months on each charge and ordered the sentences to run consecutively. In addition, the Appellant was disqualified for a total period of four years and ordered to pay costs amounting to $1000.

3. In his appeal against sentence, the Appellant has sought to say that a total period of imprisonment for six months was excessive. I can only say that, if in this case the learned magistrate had passed concurrent sentences with an effective overall term to serve of six months imprisonment, I would have seen no basis for interfering.

4. In R. v. Matthews, [1988] Crim. L. R. 128, it was held that it was a general principle that concurrent sentences should be passed for two offences arising out the same facts. The Court of Appeal further held that in such a situation it had no alternative but to apply it and ordered that sentences which had been ordered to run consecutively were to run concurrently.

5. The commentary in the Criminal Law Review on that case notes that that general principle was not applied in the cases of Wheatley or Dillon. It points out, however, that the decisions in both those cases recognised the general principle, stated that it should be applied in normal circumstances, but found that each of those cases was exceptional and that a departure from the general principle would only be justified in 'exceptional circumstances'.

6. In this case, I can see no exceptional circumstances justifying a departure from the general principle. Accordingly, in line with the decision in Matthews, I have no alternative but to apply it. I must, therefore, allow the appeal to the extent that in lieu of the order that the sentences run consecutively the order will be that they be served concurrently.

Representation:

Mr. A. K. Maxwell Crown Counsel for Crown.

Mr. Richard Wong instructed by Director Legal Aid for Appellant.