Li Kim-wai v. The Queen

CACC000729/1980

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Coram: Roberts, C.J., Huggins and Leonard, JJ.A.

Date of Judgment: 6th November 1980.

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JUDGMENT

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Huggins, J.A.:

1. This Appellant was convicted on his own plea on four charges, three of obtaining property by deception and one of theft. He was sentenced to two and a half years' imprisonment on the first three charges and nine months' concurrent on the other. He has sought leave to appeal limiting his appeal to the first three sentences, but by virtue of s. 83 I(2) of the Criminal Procedure Ordinance where sentences of this kind are imposed and there is an appeal against any one of them, the sentences on all are in issue. This may be material in the present case because the offences with which he was charged on this occasion were committed on 7th January, 17th January and 19th January, and the fourth charge on 5th March. Between 19th January and 5th March the Appellant was sentenced in another case and given a suspended sentence.

2. Dealing first with the sentences in the present case, we see no reason whatever to interfere. These were particularly mean offences, involving the deception of Hong Kong residents into thinking that relatives had arrived illegally from China and the asking them for money to enable those relatives to be brought into the urban area. It is true that the persons deceived were prepared to involve themselves in an illegal transaction, but that does not excuse the Appellant who was prepared to trade upon this human weakness. The Appellant had other previous convictions, admittedly they were in 1973 and 1974. On the first occasion he was convicted of theft and given a suspended sentence. During the period of that suspension, he committed another offence. It is, therefore, absurd for the Appellant to say, as he said to us, that he had not previously had a chance. The arguments which he put up, save those relating to allegedly comparable sentences, were of no weight whatever. The other cases to which he referred us do not seem to be directly in point and we do not have the full details. They certainly did not involve a deception of the type in this case.

3. As I have said, we think these sentences were amply justified. I turn, therefore, to the suspended sentence. The single judge gave leave to appeal because he took the view that the District Judge had been wrong not to activate the suspended sentence. The reason given by the judge for not so doing was that the previous conviction was dissimilar, the offence on that occasion being taking a conveyance without authority. We think the single judge was right. Section 109C of the Criminal Procedure Ordinance requires that the court shall make an order activating the sentence unless it would be unjust to do so and mere dissimilarity between the offences does not make it unjust. We think it is important that suspended sentences should be activated where the law so requires, otherwise suspended sentences lose all their effectiveness. The whole purpose behind the suspended sentence is that a defendant shall know that if he commits a further offence he will go to prison on an activated sentence, save in exceptional circumstances, and those exceptional circumstances will rarely occur.

4. Accordingly, we allow this appeal to the extent only that the sentence imposed on 6th February 1980 will be activated and run consecutively to the sentences in the present case.

6th November 1980.

Representation: