Chiang Ka-wai v. The Queen

CACC000685/1976

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Coram: Pickering, Ag. Chief Justice, McMullin, Ag. J.A. and Leonard, J.

Date of Judgment: 20 August 1976

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JUDGMENT

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1. This is an application for leave to appeal against sentences imposed in the District Court on charges of theft, claiming to be a member of a Triad Society and two charges of blackmail and two further and corresponding charges of theft.

2. On the 1st of April 1976 the appellant and another extorted from TSE Sai-tai the sum of $20. The appellant told the victim that he was a member of the 14K Triad Society and threatened to give the victim trouble if he refused to pay. An incident of the 27th of May 1976 was accompanied by the same threat. On each occasion $20 was handed over. These two incidents formed the basis of the second, third, fourth, fifth and sixth charges; that of the 1st April 1976 was the subject of charges two, three and five while that of the 27th May 1976 was the subject of charges four and six. In addition by somewhat similar behaviour the appellant received on the 1st June 1976 the sum of $10 in cash from LEE Fung-chun at Sai Wah Laundry Kwun Tong. This incident formed the subject of the first charge. The learned trial judge imposed sentences of three months' imprisonment on the first charge; twelve months consecutive on the second charge; eighteen months concurrent with the second charge but consecutive to the first charge on the third charge; six months consecutive on the fourth charge and a further six months consecutive on the fifth charge sentences which totalled in the aggregate thirty-nine months.

3. The appellant had previous convictions relating to dangerous drugs and being found on enclosed premises. He had never been imprisoned before but had been sent to the Drug Addiction Treatment Centre.

4. It could not then be said that any single one of the sentences imposed was excessive or wrong in principle but it was the appellant's case that certain of the sentences should have been concurrent and not consecutive. The observations of the Full Court in Reg. v. LUI Shu-tong are frequently quoted. Insofar as they are apposite to the facts of this case, they read:

"We are of the opinion that the best course for a court to adopt in passing sentences is to decide firstly what, in all the circumstances, including both the back-ground of the offence and the offender is an appropriate sentence for each offence. Then, the court should consider whether any particular group of offences arises out of the same said offence, so that it can be said that the whole group of offences are interconnected with one another. Normally, it is more appropriate that the sentences on the various charges in one such group should be ordered to run concurrently with one another."

Adopting this principle we considered that the sentences imposed on the second, third and fifth charges should be concurrent with one another as should the sentences on the fourth and sixth charges. In the result the sentences on the second, third and fifth charges are ordered to run concurrently with one another but consecutive to the sentence imposed on the first charge and likewise the sentences on the fourth and sixth charges shall be concurrent with one another but consecutive to the sentences imposed on the first, second, third and fifth charges so that the appellant will serve a total of 27 months' imprisonment.

Representation: