Wong Sai-nang and Another v. The Queen
Read the full judgment text of CACC 1063/1979 on BabelCite. This Court of Appeal judgment was delivered on 3 April 1980 before Huggins, McMullin and Cons, JJ.A..
Criminal law – robbery – sentence – consecutive terms – jurisdiction – s.82 District Court Ordinance – aggregate limit of 7 years – 1st Appellant convicted of robbery, sentenced to 6 years consecutive to any other sentence – existing 4-year sentence for aggravated burglary – aggregate 10 years exceeding 7-year cap – Court of Appeal reduced robbery sentence to 3 years consecutive – appeal against conviction dismissed
Legal issues: Jurisdiction to impose consecutive sentences exceeding 7 years under s.82 District Court Ordinance
Outcome: 1st Appellant's appeal against conviction dismissed; sentence varied from 6 years to 3 years' imprisonment, to run consecutively to the existing 4-year sentence.
Cited by 4 cases
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CACC001063/1979 Sentence - District Court - term of imprisonment consecutive to term imposed in previous case - total exceeding 7 years - s. 82 District Court Ordinance - jurisdiction exceeded.
----------------- Coram: Huggins, McMullin and Cons, JJ .A. Date of Judgment: 3 April 1980 ----------------- JUDGMENT ----------------- Huggins, J.A.: 1. We dismissed the application of the 1st Appellant for leave to appeal against conviction, but he also appeals against the sentence of six years' imprisonment imposed upon him by the District Judge for robbery, that term being ordered "to run consecutively to any other sentence". It would thus appear that the learned judge was aware of the possibility that the Appellant was already serving a term of imprisonment, although the criminal record placed before him contained no reference to any conviction for aggravated burglary. It was a serious robbery at night in a private dwelling house by two men, who threatened the inmates with weapons and tied one of them up. For such an offence a sentence of six years' imprisonment would normally be appropriate. However, counsel for the Crown very properly drew our attention to the fact that this Appellant had, on 19th March 1979 already been sentenced to four years' imprisonment for an aggravated burglary committed a fortnight after the robbery with which we are now concerned. An appeal was brought against that sentence and it was dismissed, the court ordering that the sentence should run from 30th July 1979. 2. Question arises not merely as to the general appropriateness of terms totalling ten years for these two offences but also as to the legality of the second sentence in the light of s. 82 of the District Court Ordinance. The relevant parts of that section are:
Was the sentence of six years' imprisonment imposed in the present case one of "two or more consecutive terms of imprisonment ... imposed by the Court under subsection (1)"? There are two classes of case referred to in subsection (1): the first is where one judge or magistrate has passed a sentence of imprisonment and a District Judge (whether the same or another judge) subsequently has imposed a further sentence of imprisonment, and the second is where one judge passes two sentences of imprisonment "at the same time". We think the present case does fall within the first class. It follows that by reason of the proviso the judge in the present case could not lawfully pass any sentence which, when aggregated with the existing sentence of four years' imprisonment, exceeded seven years. We should not be understood to be saying that the aggregate of seven years was sufficient for these two heinous offences, but that was the maximum which it was within the jurisdiction of the District Court to impose. Anything less would clearly be out of the question and accordingly all that remains is for us to decide the form of the order we should make. 3. We have already said that a sentence of six years was per se a proper sentence. One of seven years would have been on the high side and we think it might be misleading, and prejudicial to the Appellant, to impose such a sentence to run concurrently with the earlier sentence. The only alternative is to impose a consecutive sentence of three years' imprisonment and, whilst that may equally suggest that the present offence was less serious than it was in fact, we have come to the conclusion that that is the course we must adopt. 4. It should perhaps be added that the Appellant's involvement in the present offence did not come to light for more than three months after the sentence was passed for the later offence, for which offence (due to the outstanding courage of a young woman) he was arrested at the scene. There was, therefore, no possibility of the two offences' being charged together. If it was thought that an aggregate sentence of more than seven years' imprisonment would be appropriate, it would have been open to the prosecution to indict the Appellant for the robbery and to have him brought before the High Court. 3rd April 1980 Representation: 1st appellant in person. Alderdice for Crown/Respondent. |
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