HKSAR v. Brian Alfred Hall

CAC C 18/2012

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 18 OF 2012

(ON APPEAL FROM DCCC NO. 1431 OF 2009)

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BETWEEN

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And

CAAR 1/2012

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

APPLICATION FOR REVIEW NO. 1 OF 2012

(ON APPEAL FROM DCCC NO. 1431 OF 2009)

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BETWEEN

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REASONS FOR JUDGMENT (Conviction) and
JUDGMENT (Review)

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Hon Stock VP (giving the judgment of the Court):

Introduction

1.On 12 January 2012, Brian Hall was convicted after trial in the District Court by Judge Eddie Yip of four offences: three of doing acts tending and intended to pervert the course of public justice and one of using copies of instruments which were and which he knew or believed to be false.  The judge sentenced Hall to concurrent terms of imprisonment of four years on each charge.

2.There followed two applications :

(1)   an application by Hall for leave to appeal those convictions; and

(2)   an application by the Secretary for Justice, pursuant to leave granted by the Chief Judge of the High Court, for a review of those sentences.

3.On 5 February 2013, we dismissed the application for leave in relation to the convictions and said we would give reasons, which we now do.  On the same date we heard the application for review and reserved our judgment.  It is convenient to provide those reasons and to deliver the reserved judgment in one document.

Background

4.The applicant was arrested at the Hong Kong International Airport in September 1997 on arrival from Brazil with a large quantity of cocaine.  He was convicted after trial of trafficking in those dangerous drugs and on 23 June 1998 sentenced to 18 years imprisonment for that offence.  His appeal from that conviction was dismissed in June 1999.

5.His has been an unusually eventful incarceration, particularly in recent years during which he has been defendant in a number of trials in the Magistrates Courts and the subject of a host of disciplinary proceedings.

6.The issues now before us concern four separate cases.

(1) The first case: deceiving the Court of Final Appeal

7.In June 2005 he was convicted after trial in Eastern Magistracy of assaulting an officer of the Correctional Services Department (CSD) and sentenced to 6 months’ imprisonment, which term was ordered to run consecutively to the term of 18 years imposed in 1998.  The case number in the magistracy was ESCC 3093/2004.  His appeal from that conviction to the Court of First Instance was dismissed in February 2006.

8.However, in 2008 he sought from the Court of Final Appeal leave out of time to appeal that conviction.  In support of that application he filed an affirmation dated 13 October 2008 to which he exhibited photocopies of two statements allegedly made by two CSD officers (Ho and Tung) who had testified against him at his trial in respect of the assault.

9.That affirmation said that “sometime in late September 2007 or early October 2007” he was taken to the prison hospital where a file relating to him was brought out and in which he, by chance, saw many staff statements – in other words statements in the nature of witness statements made by CSD officers – amongst which were statements by Ho and Tung relating to the alleged assault for which he had been convicted, but which revealed stark discrepancies with those statements of theirs which had been disclosed by the prosecution to the defence prior to the assault trial and with the oral testimony of those officers at that trial.  He said that he thereupon made a request for provision of copies of those statements and that they were supplied to him.  It is thus that he was able to exhibit the newly discovered statements to his affirmation.  Based on this affirmation and its exhibits, the Court of Final Appeal was persuaded to grant leave on the “substantial and grave injustice” limb of s 32(2) of the Court of Final Appeal Ordinance and on 30 June 2009 the appeal was allowed and the conviction for common assault quashed.  The panel included the Chief Justice, three other permanent judges of the Court as well as the former Chief Justice of Australia, Sir Anthony Mason, sitting as a non-permanent judge of the Court.  Their unanimous acceptance of the veracity of these assertions by Hall – and therefore of his case of material nondisclosure – was encouraged by a concession made by counsel from the Department of Justice then appearing for the HKSAR.  Upon the fact of that extraordinary concession, we shall comment later.

10.The prosecution assertion, which Judge Yip accepted as proved, was that the statements of the two officers allegedly discovered by Hall at the prison hospital were forged: the officers had made no such statements.

11.This allegation constituted the basis of the first charge in the District Court, which was that with intent to pervert the course of public justice, Hall did a series of acts which had a tendency to pervert the course of justice in that he executed the affirmation which contained falsities and attached to it false statements purportedly made by the CSD officers and then used the affirmation for the purpose of his appeal to the Court of Final Appeal.

(2) The second case : Eastern Magistracy No. 5737/2007

12.On 26 November 2008, a month after the filing of his affirmation in the Court of Final Appeal application, Hall was convicted after trial in the Eastern Magistracy of attempting to assault a medical officer of the Correctional Services Department and he was fined $1,500.

13.In the course of the trial and in order to exonerate himself, he produced a document entitled “Important Notice” allegedly signed by two officers of the Correctional Services Department, one an assistant commissioner named Chan and the other a superintendent named Siu.  He also produced a written statement allegedly made by an officer called Tam the contents of which were, as to the facts, materially different from Tam’s oral evidence at trial.

14.The “Important Notice” is on its face an extraordinary document, the contents of which speak volumes for its non-authenticity.  It is a notice purportedly for distribution within the CSD; it is derogatory of Hall and instructs staff how Hall should, because of his troublesome disposition, be dealt with in future: the instructions include directions to use necessary and reasonable force rather than persuasion to ensure that he complies with rules, to “charge the subject by all means, of any actual or imagined transgression and by all means to ensure his conviction of such transgression. … .” (Emphasis added).

15.The prosecution case which Judge Yip found to be proved was that the “Important Notice” and Tam’s inconsistent written statement were forgeries, designed to secure Hall’s acquittal upon the charge of attempted assault.  The design failed at the trial stage.

16.This allegation constituted the background to the second charge with which we are concerned, namely, that on 26 November 2008 with intent to pervert the course of public justice, Hall gave false testimony in the magistracy proceedings as to the provenance of the copies of the “Important Notice” and of the staff statement allegedly made by officer Tam, which Hall represented to the court were copies of genuine documents made by the various officers.

(3) The third case : Eastern Magistracy No. 2175/2007

17.This was a case of common assault and criminal damage of which Hall was convicted in the Eastern Magistracy in April 2009 and sentenced to a total of two months in prison.  The case had progressed in fits and starts since September 2008 and in December that year the applicant produced another “Important Notice” in the same terms as in the second case, allegedly signed by the same senior officers; and he also produced statements of two CSD officers named Lam and Leung which on their face were materially inconsistent with their testimony.  The prosecution case was that these three documents were forged.

18.This was the background to the third charge which was that between 8 December 2008 and 2 April 2009 with intent to pervert the course of public justice he produced copies of these various documents and represented to the court that they were copies of genuine documents made by the officers in question.

(4) The fourth matter : the letter to a High Court Judge

19.By letter dated 29 April 2009 Hall addressed Yam J with a request for advice or direction.  Hall had by that stage been declared a vexatious litigant which meant that he could not commence proceedings without leave of the court and it was in the context of that restriction that the letter was written.  In the letter Hall recorded the fact that he had been the subject of approximately 60 adverse disciplinary decisions (as a result of which, so we were informed, he had lost 440 days of remission of sentence).  Hall told the judge that but for that loss of remission he was due for release in September 2009 and he wished to challenge, by way of an application for judicial review, the validity of the disciplinary proceedings on the basis that those who had adjudicated the disciplinary allegations, which had resulted in the loss of remission, had been biased.

20.In support of the assertions made in the letter, Hall exhibited 10 documents: that is, five medical reports, each one countersigned by a superintendent who had presided at one or more of the disciplinary hearings; four notes relating to disciplinary proceedings and another copy of the “Important Notice”.

21.Each of the medical reports, supposedly intended for internal distribution or reference within the CSD, was purportedly signed by a doctor, and each was in the same terms:

“For your advice and assistance in your investigative duties on the subject, please be advises that according to the psychiatrist diagnosis and advice of Dissocial Personality Disorder on the subject are on 4.11.99, the prisoner have the disposition to being easily irritable and aggressive, to be violating Laws, the Prison rules and regulations, being self-centred, deceitful, untruthful, impulsive, irresponsible, manipulative, calculated, remorseless, and prone to hold an antagonistic front to authority figures.”

There was then an item below which said “Advice Agreed/ Accepted: Yes/ No” and in each instance the “Yes” was ticked.  A doctor’s name and signature appeared at the foot of the report as well as the name and signature of a superintendent.

22.The disciplinary hearing note in each instance was addressed by a superintendent to a senior superintendent recording the (purported) fact that Hall’s request for recusal of that superintendent from adjudicating the disciplinary charge or charges was denied.

23.The prosecution case was that each of these copy documents was false in that none of the doctors and none of the CSD officers had made them.  This allegation resulted in the fourth charge which was that of using copies of false instruments, contrary to section 74 of the Crimes Ordinance, Cap 200, with the assertion that knowing the instruments to be false, Hall had used them with the intention of inducing Yam J to accept them as copies of genuine instruments and thereby to do some act to his or another person’s prejudice.

Investigation

24.On 29 July 2009, pursuant to a warrant, the police searched premises in North Point belonging to an acquaintance of Hall, a lady named Almendar.  There they seized documents including a letter from Hall to her dated 22 September 2009 which contained instructions to her in relation to a draft chart; and the following year there was intercepted a letter which contained directions in relation to forms referred to in the letter.

25.On 30 July 2009 the police searched Hall’s cell at Stanley prison and amongst the documents there seized was a template for a medical report, with a format almost identical to that utilised in the medical reports sent to Yam J.

26.Hall was arrested on 26 October 2009 and in interviews conducted with him, he asserted that the documents in question were not forged; and that in any event, he believed, when he used copies of them, that they were genuine.

The trial

27.The trial before Judge Yip took 96 days.  There were over 40 prosecution witnesses.  This is not altogether surprising for the prosecution related to four separate cases or episodes and required the testimony of all the persons against whom false allegations had allegedly been made by Hall; including doctors and CSD officers, as well as the testimony of a document expert and of a host of others necessary to prove the falsity of Hall’s stories – for example, a witness to say that he had never received a request from Hall to search medical files; a prison officer at the prison hospital to say that the five medical reports produced by Hall to Yam J were not in standard form; witnesses to prove that photocopying facilities were not made available to Hall on dates he said he had photocopied documents; and evidence to counter Hall’s suggestion that the template had been ‘planted’ in Hall’s cell.

28.Hall did not testify nor was any evidence called on his behalf.

29.Officers who were said to have made inconsistent statements – the statements produced to the Court of Final Appeal and to the two magistrates – identified what it was about the statements attributed to them that showed them to be forged documents: for example (the full list of indicia of falsehood is long), the stated location of an office of one officer was not where his office was; nomenclature was erroneous (for example, “special team” instead of “Special Unit”); reference to an “English edition of the South China Morning Post” was an inherently unlikely reference since there is no Chinese edition.  The statement of another officer was in English whereas the officer never wrote statements in English, his accomplishment in which was demonstrably limited.  Some medical reports rendered psychiatric diagnoses whereas the medical officer in question was not qualified to offer one.  Notes shown to Yam J suggested a CSD chain of command which was erroneous.  One Senior Superintendent was represented by a document to be stationed at a place at which he could show he had not been stationed at the material time.  Cutting and pasting of signatures had obviously taken place – one such indication was the fact otherwise one had to conclude that a person’s signature on one original document could be precisely the same as on another original, an impossibility according to the expert testimony.  Falsification was also palpable from the fact of the absence of the usual dotted lines under names in the heading to statements: an absence clearly caused by the effect of cutting and pasting.

30.There was then the content of the Important Notice.  Putting aside entirely the denials of those said to have signed them, the notion that an instruction to use force over persuasion and to secure convictions of imagined transgressions and to do so by any possible means would be reduced to writing, and signed by senior identifiable officers and distributed, is a fanciful notion and in itself is a document which forcefully bolstered the prosecution case.

The application against conviction

31.Against the background we have provided, we do not intend to traverse any detail in the Reasons for Verdict, for absent a failure to accord a fair trial – and there was no such failure – the evidence was as overwhelming as could be and a conviction on each charge was inevitable.

32.It is as well that Mr Davies presented his oral submissions with modesty and without pressing his written submissions too far for, with respect, the grounds were wholly without merit.

33.There was first a complaint about a finding in relation to the opinion supposedly expressed by the expert as to the purpose of the letter found in Almendar’s possession and of the intercepted letter.  The suggestion was that the expert did not, as the judge seems to have found, conclude that the letters were instructions to create forged documents.  The point matters not, for the letters speak for themselves to the same effect and in any event were not needed to prove the prosecution case for the rest of the evidence, correctly analysed and relied upon by the judge, constituted proof enough of Hall’s guilt.

34.It was said that the judge reversed the burden of proof, for which contention references were made to the focus of the judge on a series of propositions put forward by the defence.  The point ought not have been advanced for it has not a scintilla of merit.  The judge was doing no more than dealing with defence points, as judges often do.  Had he not done so, there would no doubt have been a complaint.  It is crystal clear that he applied the correct burden and standard of proof.

35.It was said that the judge drew inferences which were not irresistible inferences; that he failed to remind himself that no adverse inference could be drawn from the defendant’s election not to testify; that he failed properly to evaluate the evidence of prosecution witnesses.  There is simply nothing in these grounds or in any of the other grounds advanced; for which reason we dismissed the application.  It is an application that should never have been made.  We are surprised that public funds were allotted for the making of this application.

36.We will give an opportunity for submissions as to why an order should not be made that time spent pending the hearing of the application shall not count towards the sentence imposed. 

The application to review sentence

(1) The judge’s approach

37.At the date of sentence by Judge Yip, Hall was aged 35 years and was serving a lengthy sentence for trafficking in dangerous drugs.  The offences of which he was convicted by Judge Yip were committed over a period of some months.

38.In his Reasons for Sentence, the judge expressed his finding that Hall had obviously “instructed some people outside the prison to help him for documents.”

39.He noted that the offences were aimed at avoiding, in the case of the first and third charges, short prison sentences; a fine in the case of the second charge; and 440 days deprivation of remission in the case of the fourth.

40.The judge was under the impression, and proceeded on the basis, that the maximum sentence for the offence of perverting the course of justice was 7 years’ imprisonment; and he noted that the maximum sentence for using a copy of a false instrument was 14 years’ imprisonment.  Since the offence revealed by the fourth charge was in the nature of an attempt to pervert the course of justice, he acceded to a submission that he should treat it for sentencing purposes as no more serious than the other three.

41.The judge referred to a number of other cases which were drawn to his attention.  He noted that premeditation and careful planning is a serious aggravating factor and expressed his view that in this case “the defendant had orchestrated a well-planned and sophisticated attack on the judicial system and the CSD security system which lasted more than a year.”  There were 15 forged documents relevant to the four charges and “this,” he said “had to be a horrendous and colossal project, ingenious and unprecedented in or outside of court.”

42.The judge appears to have taken a starting point of 4 years’ imprisonment in relation to each offence.  On the question of totality the judge referred to Attorney General v Tai Chin-wah [1994] 2 HKCLR 81 in which the Court of Appeal had described the charges against the applicant solicitor who had committed a number of offences to one particular end “as being intermingled one with the other,” thereby justifying, the court said, an overall starting point.  The judge said that he thought this approach apposite for the present case, since Hall’s “whole idea and the mechanism adopted to cheat the courts, as well as the attending circumstances, is intermingled one and the same, the consequence equally serious.  I take 4 years as the overall starting point for each charge.  There are no mitigating factors.  His sentence is 4 years each to run concurrently.”

(2) Analysis

43.It is, with respect, not entirely clear, what the judge meant by “overall starting point for each charge.”  The correct approach is to take a starting point for each individual offence, reflective of the gravity of that offence and the circumstances of its commission; the question whether separate offences are “intermingled” one with the other so as to warrant concurrent sentences is another matter.

44.Be that as it may, the judge has, in our respectful opinion, erred in a number of regards.

45.First, the maximum sentence for the offence of perverting the course of public justice was at the time of the commission of all the offences in this case not one of 7 years’ imprisonment, but at large.  The maximum penalty had been 7 years’ imprisonment but was increased in May 2008 to “imprisonment for any term and a fine of any amount, subject to any limitations as to the maximum term or terms of imprisonment and the maximum fine which a court may lawfully impose under the District Court Ordinance (Cap 336) or the Magistrates Ordinance (Cap 227)”: see s 101 I(5) Criminal Procedure Ordinance and s 15 Statute Law (Miscellaneous Provisions) Ordinance 2008.

46.Second, the judge did not, in our respectful opinion, correctly approach the question of totality.  The offences were not intermingled one with the other, each as part of a single design as in Tai Chin Wah.  To the contrary, each was separate in time and objective; and it is clear beyond peradventure that each added to the culpability of the other.  That is the key test and whatever individual sentence was warranted for each charge, that sentence ought in principle to have run consecutively to the sentences on each of the other offences, subject only to an assessment of the appropriate totality and to the maximum sentencing jurisdiction of the District Court.

47.Third, the gravity of each offence was not the same, a fact that ought to have been reflected in the individual sentences.

48.We were at first surprised that this prosecution had been brought in the District Court rather than in the High Court, but we accept the commonsense of the proposition put to us by the Director of Public Prosecutions, Mr Zervos SC, that given the large number of witnesses to be called (and, he might have added, the predilection of the defendant to prolixity, were he to be unrepresented), a jury trial did not present a happy prospect.

49.The suggestion made to us on behalf of the applicant for review that these offences fell within the most serious bracket of their kind is probably not correct, serious indeed though they were.  This is a type of offence which can be committed in such a variety of circumstances and by such widely disparate devices, that meaningful comparisons are difficult.  In other cases there may feature threats, intimidation or even violence upon witnesses and jurors or members of their families; and in such cases where the threat or violence does not dissuade the witness from testifying truthfully or the juror from honouring his oath, fear is likely to linger long after the event.  Some cases involve the framing of a wholly innocent person, the consequence of which, if the attempt to pervert is ultimately successful, may be years of imprisonment of an innocent person.  None of these starkly harsh factors featured in the course of Hall’s dishonest escapade which is not to say that the lengths to which he went to deceive the courts were not serious: it is merely to bring to mind the variety of facts that can and do present themselves within this category of offence.  Certainly, the question of the consequences avoided or attempted to be avoided is always an important one to address and in this case, the consequences designed to be avoided were mild compared to many other cases in this category of offence.

50.That said, these were serious offences of their kind.  They evidenced a campaign to undermine the administration of justice in a series of cases – one case after another, without any qualm or hesitation in one case that the Court to be fooled was the highest Court constituted by the most senior judicial officers in the jurisdiction.  It was all carefully planned, involving the engagement of outsiders – clearly so – to ensure success.  Multiple documents were forged.  The essence of the scheme was to suggest that specified officers were prepared to frame him and to perjure themselves in order to secure his conviction of criminal offences and of imagined disciplinary offences, with no concern, of course, that thereby their reputations and possibly their careers, were put at risk.  These were most serious allegations to make and then to seek to make good by extensive forgery. Public funds were committed, in the form of legal aid, for some of the cases, including the applications to the Court of Final Appeal.  Much judicial time was wasted as a result of these forgeries.  Then, to an altogether different end, forgery was used by a convicted prisoner, Hall, in an attempt to secure restoration of substantial remission of sentence.  In the months in question, and at each opportunity which presented itself for extrication from problems he had himself created, Hall dedicated his considerable energy to immersing the judicial and prison systems in a stew of deception.

51.Against this background, we are satisfied that one of the sentences imposed as well as the totality were manifestly well outside the range which a judge properly applying his mind to all relevant factors could reasonably consider appropriate (see : Attorney General’s Reference ( No. 4 of 1989) (1989) 11 Cr App R (S) 517, 521).

52.Some of the sentences in the cases to which we have been referred or which we have otherwise studied appear somewhat low given the nature of this category of offence, an offence which “strikes at the very heart of the system by which law and order is enforced in society.  If it were to succeed to any appreciable extent, it would completely destroy public confidence in that system.  Strong measures are needed to preserve that confidence … . ”: Cons JA in Attorney General v Yeung Sau Shing [1981] HKC 129 at 132.  The relatively – sometimes remarkably – low sentences which some of the cases reveal may to a considerable extent be explained by the seven-year ceiling which prevailed prior to 2008.

53.A case of some assistance is Secretary for Justice v Wong Kwok Kau [2004] 3 HKLRD 208 in which a defendant set up a bogus drug trafficking operation in order to deceive the sentencing court into believing that he had provided significant material assistance to the law enforcement authorities in the detection of crime; and he thereby secured a sentence of seven years’ imprisonment for trafficking in 845 g of heroin instead of a 14-year sentence which, upon his plea, he would, but for the suggested assistance, have received.  Hamstrung by the seven-year maximum which then prevailed for the offence of conspiracy to pervert the course of public justice, the sentencing judge took a starting point of seven years and accorded a suitable reduction for a plea of guilty.  The case is of relatively limited assistance because the application for review of sentence was for a review of the sentence of seven years’ imprisonment for the original drug trafficking offence; not for a review of the sentence imposed in respect of the perversion of course of justice.  The Court did however, as an addendum to its judgment, remark that the maximum sentence of 7 years’ imprisonment for perverting the course of public justice was not a sufficient deterrent for those who had acted as had the defendant in that case.

54.The deception practised upon the Court of Final Appeal did not have as its objective the avoidance of a penalty of anything remotely in the same order as the 7 years which Wong Kwok Kam avoided by his deception of the sentencing court in his case.  What was at stake in the case before us was a sentence of six months’ imprisonment.  Yet the calculated, carefully planned, effrontery of it was extraordinary involving as it did perjury (the making of an affirmation knowingly putting forward untruths), forgery and serious allegations against serving correctional services officers.  There Hall sat, twice, before the Court of Final Appeal knowing from minute to minute that fraudulent material was being advanced on his behalf to the Chief Justice and other members of the Court; resulting eventually in their Lordships delivering themselves of a reasoned judgment in which they said that the two Correctional Services Department officers had given materially different accounts, one version of which, in the case of each officer, had never been disclosed either to the police or to the Department of Justice; and the Court found that in the event there had been demonstrated a grave and substantial injustice and that there was a lesson to be learned “by this disturbing case” which was that “the arrangements made by prosecutors to ensure compliance with the obligations of disclosure must be kept under regular review and operated with constant vigilance.”: Hall v HKSAR [2009] 6 HKC 15.

55.In our judgment, this offence warranted a sentence of 6 years’ imprisonment.  

56.We have earlier referred to the concession made by counsel who appeared for the respondent prosecutor before the Court of Final Appeal.  He is not before us on the present applications.  He conceded the appeal.  It was an extraordinary concession which, on the basis of what we have been told by the Director, should never have been made.  We have been told by Mr Zervos that early in 2009, counsel who appeared for the HKSAR in the hearings before that Court was informed that an investigation was under way into Hall’s assertions of inconsistent statements and of the way in which he came by them.  Before the hearing of 30 June 2009 he was, we were told, aware that both CSD officers had said that the statements attributed to them were not theirs.  Obviously, counsel should have told their Lordships of that fact and he should have sought an adjournment pending the outcome of the investigation.  Instead, he conceded the appeal and actively supported it.  This earned for him an accolade in the judgment itself: “It should be mentioned,” said Bokhary PJ “that counsel for the respondent very properly declined to support this conviction and, indeed, offered helpful arguments for quashing it.”  It is right to say that counsel concerned has not had the advantage of explaining to this Court or to the Court of Final Appeal how he came to make the concession, but Mr Zervos tells us that it was the result of counsel’s perception of how, on the basis of what he had before him, his duty of prosecutorial fairness should play out, a perception which – so Mr Zervos asserts and we wholly agree – was on the facts of this case, misplaced.

57.We have considered the question whether the sentence which would otherwise have been appropriate should be slightly reduced to reflect the fact that but for counsel’s failure to inform the Court of Final Appeal of the investigation and to seek an adjournment, their Lordships’ time was likely to have been wasted to a lesser extent.  We think not; for Hall’s intention all along was to secure the perversion of justice which he in fact secured and we fail to see as a mitigating factor, in this or other such cases, the fact that a more comprehensive investigation or a more prudent approach by prosecuting counsel would or might have stopped the attempt at perversion from coming to fruition.

58.The sentences for the second and third offences ought not to be as high as for the first, since the penalties sought to be avoided were less and the resources wasted less extensive.  We would impose, as did the judge, a sentence of four years’ imprisonment for each.

59.A substantial effort went into the commission of the fourth offence; an offence directed at reversing the outcome of no less than 60 different disciplinary decisions and an attempt, by a fraud on the court, to trigger proceedings which were hoped to shorten the time actually served in prison by over 12 months.  This warranted a sentence of 5 ½ years’ imprisonment.

60.Each offence added to the culpability of the offender.  So consecutive sentences were, in principle, warranted.  But the totality of wholly consecutive sentences for the four offences would be dramatically excessive.  We adjudge a totality of 8 years’ imprisonment to be the least that would properly be warranted; but given the jurisdictional sentencing limit of the District Court, that totality must be reduced to one of 7 years’ imprisonment.

61.Since that sentence is greatly in excess of the original sentence, we shall reduce it further by three months and secure a total of 6 years 9 months’ imprisonment.

Result

62.We allow the application for review to the following extent:

(1)   We set aside the sentence of 4 years’ imprisonment on the first charge and substitute a sentence of 6 years’ imprisonment.

(2)   We set aside the sentence of 4 years’ imprisonment on the fourth charge and substitute a sentence of 5 ½ years’ imprisonment.

(3)   All sentences (those imposed on charges 2 and 3 are undisturbed) are to run concurrently save that 9 months of the sentence on charge 4 shall run consecutively to the sentences on the remainder; making a total of 6 years 9 months’ imprisonment.

Mr Kevin P Zervos, SC, DPP, Mr Michael Arthur (on fiat) & Mr Antony Leung, PP of Department of Justice, for the Respondent (in CACC 18/2012)/ Applicant (in CAAR 1/2012)

Mr Oliver Davies instructed by Tso Au Yim & Yeung, assigned by D.L.A., for the Applicant (in CACC 18/2012)

Mr Oliver Davies instructed by Vidler & Co., assigned by D.L.A., for the Respondent (in CAAR 1/2012)