HKSAR v. Lau Wong

HCMA 399/2014

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 399 OF 2014

(ON APPEAL FROM ESCC 2353/2006)

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R E A S O N S   F O R   J U D G M E N T

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1.This is an appeal against sentence lodged by the Appellant who had prior to the imposition of the sentences in the present case been sentenced to life imprisonment. The present sentences were imposed in June 2006 after the Appellant had pleaded guilty to the following charges (hereinafter called the present offences) :

(i) 1^st Charge:   Wounding or inflicting grievous bodily harm, contrary to section 19 of the Offences Against the Person Ordinance, Cap. 212;

(ii) 2^nd Charge:   Wounding or inflicting grievous bodily harm, contrary to section 19 of the Offences Against the Person Ordinance, Cap. 212;

(iii) 3^rd Charge:   Assault occasioning actual bodily harm, contrary to section 39 of the Offences Against the Person Ordinance, Cap. 212; and

(iv) 4^th Charge:   Assault occasioning actual bodily harm, contrary to section 39 of the Offences Against the Person Ordinance, Cap. 212.

2.The Magistrate imposed the following sentences :

Charge 1: 10 months’ imprisonment;

Charge 2: 10 months’ imprisonment, with 2 months consecutive to the sentence on Charge 1;

Charge 3: 10 months’ imprisonment, with 2 months consecutive to the sentences on Charges 1 and 2; and

Charge 4: 10 months’ imprisonment, with 2 months consecutive to the sentences on Charges 1, 2 and 3.

3.He further ordered this total imprisonment term of 16 months to run consecutively to the life imprisonment which had been imposed on the Appellant already at the time.

4.All these years have passed the Appellant lodged an appeal out of time. On 16 June 2014, extension of time for giving notice of appeal was granted.

5.The Appellant was represented by Mr Ronny Leung who provided the Court with the following information :

(1) On 9 December 1998, the Appellant was convicted of a charge of Murder and was sentenced to life imprisonment;

(2) On 14 January 2006, the Appellant together with another person attacked 4 other inmates in a prison;

(3) As a result the Appellant was charged with 4 charges of offence (the present offences) to which he eventually pleaded guilty.

(4) Upon convictions of these offences, the Magistrate imposed a total sentence of 16 months’ imprisonment, ordered to run consecutively to the life imprisonment.

6.Mr Leung raised no criticism on either the individual sentence or the total sentence imposed for the present offences, the only complaint was against the order that these sentences were to run consecutively to the life imprisonment.  It was submitted that this order was wrong in principle.

7.He cited the following two cases in support of his submission.

8.In R v Roy [1962] 1 WLR 609, Lord Parker CJ stated that:

“Life imprisonment means imprisonment for life. No doubt many people come out while they are still alive, but when they do come out it is only on licence, and the sentence of life imprisonment remains upon them until they die. Accordingly, if the court makes any period of years consecutive to life imprisonment, the court is passing a sentence which is not sentence at all, in that it cannot operate until the sentenced man dies.”

9.In HKSAR v GURUNG, RAJENDRA BIKRAM, HCMA  55/2012,  Hon McWaters J (as he then was) stated in paragraphs 5 to 7 that:

“5. The law in Hong Kong is as laid down in the decision of the English Court of Appeal in R v Foy [1962] 1 WLR 609, followed by Duffy J in R v Ngai Au Sang & Anor HCMA 202/1995. The reasoning behind this law is quite simple – imprisonment for life is precisely that. It comes to an end on the death of the prisoner unless certain action is taken in accordance with the provisions of the Long-term Prison Sentences Review Ordinance, Cap 524.

6. However, at the time this appellant was sentenced before the magistrate no such action had been taken and he was a person serving a life sentence. Consequently it is impossible for the sentence imposed by the magistrate to come into operation for it could only be activated upon the death of the appellant.

7. For this reason, I quashed that part of the magistrate’s sentence by which he ordered that the 12 months imprisonment for the wounding offence be served consecutively to the sentence for life imprisonment and in its place ordered that the sentence be served concurrently with that life sentence.”

10.Counsel representing the Respondent, Mr Prakash L. Daryanani, SPP, conceded the appeal to the extent that the order for the sentences to run consecutively should be quashed and replaced by a concurrent sentences order.

11.Mr Leung informed the Court that no action has been taken pursuant to the Long-term Prison Sentences Review Ordinance, Cap. 524.  The Respondent confirmed the information.

12.In my judgment, the appeal should be allowed in the circumstances to the extent that the consecutive sentences order should be quashed.  Accordingly, I make the following orders :

(1) The sentence imposed on each of the present offences and the order that the sentences on charges 2, 3 and 4 to run partly consecutive to the sentences imposed on the other charges to stand (the aggregate sentence for the present charges remains to be 16 months); and

(2) The aggregate sentence of the present offences to run concurrently with the life imprisonment term previously imposed, the original order that the aggregate sentence to run consecutively to the life imprisonment term be quashed.

Mr Prakash Lachmandas DARYANANI, SPP of Department of Justice, for the respondent

Mr LEUNG, Ronny Y W, instructed by Director of Legal Aid, for the appellant