Read the full judgment text of CACC 000474/2005 on BabelCite. This Court of Appeal judgment was delivered on 3 April 2006 before Stuart-Moore VP and McMahon J.
Criminal law – sentencing – theft – breach of trust – petrol station manager – misappropriation of cash takings by substitution of personal cheques – nine counts of theft – guilty plea – whether sentencing judge adopted wrong approach to totality – whether totality of sentence manifestly excessive – application of R v Trevor Clark guideline bands in Hong Kong – discount for guilty plea reduced because applicant absconded while on police bail – HKSAR v Lo Shiu Wah. Held, allowing the appeal in part: the individual-offence approach adopted by the judge, fixing the sentence on each charge and then using consecutive and concurrent orders to achieve an appropriate totality, was correct in principle and was endorsed in HKSAR v Chiu Ping Kei, HKSAR v Wong Kam Tat, HKSAR v Yeung Kwai Kuen and R v Chen Yueh Ling; the method matters less than ensuring the resulting totality is appropriate. The full one-third discount for the guilty plea should, however, have been reduced to 20% to reflect the applicant's absconding while on police bail. Applying the R v Trevor Clark bands (as adjusted to Hong Kong dollars) the total amount of HK$556,245.50, of which HK$80,827.60 had been repaid, fell within the second band, indicating a notional overall starting point of 30 months rather than the 45 months reflected in the 30-month totality imposed. The sentences on charges 2 to 9 were ordered to be served wholly concurrently with each other and with the sentence on charge 1, and the 10-month sentence on charge 1 was ordered to be served consecutively to them, producing a revised totality of 20 months' imprisonment.
Legal issues: Correct sentencing approach for series of offences (individual offence approach vs global approach) · Whether totality of 30 months was manifestly excessive
Outcome: Application for leave to appeal against sentence treated as the appeal and allowed to the extent that the totality was reduced from 30 months to 20 months.
Cited by 4 cases