Attorney General v. Cheung Shu Loi

IN THE COURT OF APPEAL

Application for Review
No. 17 of 1987

BETWEEN

ATTORNEY GENERAL

and

CHEUNG SHU-LOI

_____________________

Coram: Hon. Yang, V.-P., Barker, J.A. & Barnes, J.

Date of hearing: 30th September, 1987

Date of judgment: 30th September, 1987

Date of handing down: 20th October, 1987

_____________________

J U D G M E N T

_____________________

Barker, J.A.

1. On the 30th September 1987 we heard an application by the Attorney General for the review of sentences passed on the Respondent. We allowed the application quashed the sentences of 6 years in total passed by the judge, and substituted there for sentences amounting in total to10 years' imprisonment. We now give our reasons.

2. The Respondent pleaded guilty to four counts of the indictment namely:

Count 2 burglary (of industrial premises).

Count 6 resisting arrest whilst in possession of arms.

Count 7  Robbery.

Count 8  Possession of a firearm at the time of committing a robbery.

3. The sentences passed were: on Count 2 two years' imprisonment, on Count 6 five years' imprisonment, on Count 7 six years' imprisonment and on Count 8 four years' imprisonment. All the sentences were ordered to run concurrently.

4. It is submitted that these sentences are wrong in principle and manifestly inadequate.

5. The offences in Counts 2 and 6 were committed on different dates and at different places from those in Counts 7 and 8. The only connection between Counts 6 and 8 was that it was the same firearm which was in the possession of the Respondent.

6. In LUI Shu-tong v. R.[1] at 136 the then Chief Justice said:-

“If on the other hand, each offence in the indictment is a distinct and separate offence unconnected with the other offences, it is usually more satisfactory to invoke the provisions of section 71 of the Criminal Procedure Ordinance and to order that such sentence should run consecutively to one another.”

In the judgment of this Court this is a correct statement of the principle involved. It was proper for the trial Judge to order that the sentences on Counts 2 and 6 should run concurrently and that the sentences on Counts 7 and 8 should similarly be concurrent. What was, in our judgment, wrong in principle was that all four sentences should be ordered to be concurrent with each other. What should have been ordered was concurrent sentences for Counts 2 and 6 and concurrent sentences for Counts 7 and 8, the latter sentences to be consecutive to those in Counts 2 and 6.

The totality of the sentences imposed by the trial Judge was 6 years' imprisonment. In our judgment this was manifestly inadequate. Had the Judge imposed sentences amounting in total of 12 years to 15 years in respect of these four crimes, this Court would not have interfered on appeal. We, however, are hearing an Attorney General's review, and in accordance with settled practice we impose somewhat lesser sentences as follow:-

Count 2 - 1 year's imprisonment.

Count 6 - 3 years' imprisonment to run concurrently.

Count 7 - 7 years' imprisonment.

Count 8 - 4 years' imprisonment.

The sentences in respect of Counts 7 and 8 to run concurrently with each other but consecutive to those on Counts 2 and 6, making a total of 10 years' imprisonment.

Mr. I.G. Cross & Miss Mary Sin (Legal Dept.) for Applicant.

Mr. John Marray (D.L.A.) for Respondent.

[1]  (1963) H.K.L.R. 127