HKSAR v. Wong Ping

CACC 86/2005

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

criminal APPEAL NO. 86 OF 2005

(ON APPEAL FROM DCCC 1321 of 2004)

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BETWEEN

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Before:   Hon Stuart-Moore VP and Yeung JA

Date of Hearing:   9 June 2005

Date of Judgment:  9 June 2005

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J U D G M E N T

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Stuart-Moore, VP (giving the judgment of the Court):

Background

1.The applicant was sentenced by Judge Wesley Wong on 2 February 2005 to a total of 65 months’ imprisonment after he had pleaded guilty in the District Court to the 4 offences alleged against him.  He now seeks leave to appeal against the totality of his sentence on a matter of principle. 

2.The facts could not have been more simple.  The applicant was arrested on 31 October 2004 just after he had produced an identity card issued to a certain Lam Kwok-man (Lam) as proof of his identity.  He stated that he had picked this up from the street soon after he had sneaked into Hong Kong from the Mainland.

3.A Portuguese-made knife in the style of a Kukri measuring about 14 inches was found in the applicant’s rucksack which he admitted he was proposing to use in the commission of a robbery. 

4.In due course, the police located the identity card owner, Lam, who had been robbed by 2 men on 27 October 2004 as he walked to work.  His rucksack and contents, together with a gold necklace valued at $4,000, were stolen.  Lam subsequently identified the applicant as one of these men and he confirmed that the knife carried by the applicant looked very similar to the one used in the robbery although he was unable positively to identify it as the one used.  The applicant later admitted this offence.

5.With these background facts, the applicant was charged with (1) robbery, (2) using an identity card relating to another person, (3) possessing an offensive weapon in a public place and (4) remaining in Hong Kong without authority.  The first offence was committed on 27 October 2004 and the others were all committed on 31 October 2004.

Sentencing

6.In passing sentence, the judge said:

“	1.	I have considered everything that your counsel has said on your behalf.  Robbery is a serious offence, especially when a weapon is used.  Not only you forcibly took away the victim’s property, you used the weapon and the victim was therefore put to fear.  So a long custodial sentence is inevitable.
	2.	Hong Kong would be a much better and peaceful society without people like you who repeatedly intrude into Hong Kong and commit robbery.  You are a nuisance in the eyes of Hong Kong people.  This is not the first time that you have come to Hong Kong to commit robbery.  It seems that a sentence of imprisonment did not deter you from sneaking into Hong Kong to commit robbery.” (Appeal bundle p. 10)

7.The applicant’s convictions to which the judge had referred indicated that in 1998, the applicant received a sentence of 45 months for 2 robberies and a consecutive sentence of 15 months for an offence of remaining in Hong Kong without authority, making 5 years in all.  On 11 August 2003, the applicant was again convicted of remaining in Hong Kong without authority for which he received an 18-month sentence.

8.The judge went on to indicate that the applicant’s sentence on each of the charges would be reduced by a third to reflect the pleas of guilty.  For the robbery in the 1^st charge the judge took a 5-year starting point, for the identity card offence he took 9 months, for the offensive weapon he took 6 months, reducing all these by the promised one-third.  When he came to the immigration offence, the judge merely “imposed” 15 months’ imprisonment without informing the applicant that this was the guideline sentence after plea.  Unless such an indication is given, it is easy to understand why some prisoners, ignorant of the finer points of sentencing procedure, might feel a grievance at apparently being denied a one-third discount.  The applicant can now rest assured that the sentence of 15 months on the 4^th charge is the appropriate penalty for this offence after plea.

The application

9.The single ground of appeal now advanced by Ms Ma on the applicant’s behalf amounted to a complaint that the totality principle was overlooked by the judge when he made an order that each and every sentence he imposed should run consecutively.  More specifically, Ms Ma submitted that the sentence on the 2^nd charge (using an identity card relating to another person) should have been ordered to run concurrently with the sentence of 15 months’ imprisonment on the 4^th charge (unlawfully remaining in Hong Kong).  In saying this, she relied upon what was said in R v Yee Yick-hong, HCMA 351/1996, in R v Wu Chun, HCMA 693/1994 and in HKSAR v Lo Siu-ching, HCMA 1131/2001.  In the latter case, where the appellant was charged with possession of a false travel document and remaining in Hong Kong without the authority of the Director of Immigration, the successful basis of the appeal was that as the appellant had not used the false travel document to obtain some particular benefit, the magistrate ought to have imposed concurrent sentences.  As Beeson J stated:

“	…	In So Man King [1989] 1 HKLR 142, it was acknowledged that there may be circumstances in which the use of the ID card will be an aggravating feature, but in the view of the court on that occasion the authorities drew little, if any, distinction in ordinary cases.  The substantial element affecting sentencing for all three offences, unlawful remaining, unlawful possession and unlawful use of identity cards, is the unlawful presence in Hong Kong.
	8.	A court was enjoined to take into account by upward adjustment of the sentence after plea, previous unlawful entries, whether or not they resulted in prosecution.  Other circumstances which may aggravate the offences were stated as being the actual use of a forged, or another person’s, identity card to obtain some particular benefit.  The case of AG v Lam Ping Chun [1989] 1 HKLR 161 affirmed So Man King and in the case of R v Chan Wun Sang [1993] 1 HKCLR 46, Cons Ag. CJ explained what the court meant by ‘aggravated circumstances’.
	9.	Counsel for the Appellant submitted that circumstances which may aggravate the offence and justify consecutive sentences were the actual use of a forged, or another person’s, identity card to obtain benefits such as work, or the opening of a bank account.
	10.	In R v Yee Yick Hong, Magistracy Appeal No. 351 of 1996, Leong J, as he then was, referred to 2 cases, R v Chan Chun MA 693/94 and R v Chan Wun Sang and Anor [1992] HKLR 46.  In both cases the sentences for possession of a forged identity card and for illegally remaining, were concurrent.  Leong J considered the authorities showed that the usual sentences for these offences would be 15 months in total, except where there are special circumstances, and the sentences would normally be concurrent.”

10.We agree with these sentiments and we accept, as Ms Lily Wong responsibly also did on the respondent’s behalf, the validity of the same argument raised in the present case.  The 2^nd charge, which had no aggravating features to justify a consecutive or partly consecutive sentence, had a strong common element with the 4^th charge, namely the unlawful presence of the applicant in Hong Kong.  This was not a matter which the judge considered and, by this omission, he erred in principle.

11.We propose, therefore, to maintain the same sentences imposed by the judge but to order that the sentence of 6 months on the 2^nd charge should run concurrently with the sentence on the 4^th charge.

Conclusion

12.We shall grant leave and, treating the hearing as the appeal, we shall order that the sentence of 6 months on the 2^nd charge should run concurrently with the sentence of 15 months on the 4^th charge.  This has the effect of reducing the applicant’s total sentence by 6 months, from 5 years and 5 months to 4 years and 11 months’ imprisonment.  To this extent the appeal is allowed.

Ms Lily Wong Sze-lai, SGC, of the Department of Justice, for the Respondent.

Ms Anita Ma, instructed by Director of Legal Aid, for the Applicant.