HKSAR v. Cho Kwun Wah

HCMA 81/98

HEADNOTE

As was pointed out by the Court of Appeal in England in R v Smith [1975] Crim.LR 468, a series of short sentences should be avoided. It is legitimate to impose concurrent sentences even in respect of discrete offences provided that one bears in mind, when imposing concurrent sentences in such circumstances, that the increased criminality arising out of the fact of repeated offences would have to be reflected in a total sentence which is higher than would be the sentence for a single or smaller number of offences: see R v TONG Hoi-fung [1988] 1 HKLR 610 at page 611; AG v LO Ching-fai [1996] 1 HKC 747 at page 750; and R v KWOK Chi-keung [1993] 2 HKCLR 294 at page 297.

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO. 81 OF 1998

(On appeal from NKC 124 of 1998)

________________

J U D G M E N T

________________

1. This is an appeal against sentence. On 17 January 1998, this Appellant, a man in his mid-30's with a number of previous convictions including one for burglary, pleaded guilty before R. Bruce McNair Esquire in the North Kowloon Magistrate's Court to 11 charges of obtaining property by deception.

2. On each occasion, he dishonestly obtained a social security allowance by falsely declaring that he would use the same for the payment of rent. He did that over a period of 11 months, and thus obtained a total of $11,706.

3. The actual dates and amounts are as follows:

( 1)	11 July 1996	$ 900.00
( 2)	10 August 1996	$ 900.00
( 3)	10 September 1996	$ 900.00
( 4)	10 October 1996	$ 900.00
( 5)	9 November 1996	$ 900.00
( 6)	10 December 1996	$ 956.00
( 7)	10 January 1997	$1,250.00
( 8)	10 February 1997	$1,250.00
( 9)	10 March 1997	$1,250.00
(10)	10 April 1997	$1,250.00
(11)	10 May 1997	$1,250.00
		$11,706.00

4. The Magistrate sentenced the Appellant to a total of 12 months' imprisonment. The method by which the Magistrate arrived at that result may be taken from the final paragraph of his Reasons for Sentence in which he said:

"I found consecutive sentences were right. I found that after trial a starting point of 18 months in prison was right. I found that on his early plea of guilty a generous discount of 6 months was fair. I considered at length the matter of suspending the sentence and found no reason to do so. I sentence him to 1 month in prison consecutive on charges 1 thro 10 and to 2 months in prison consecutive on charge 11, for a total of 12 months in prison."

5. An attack upon that approach as being wrong in principle is the subject-matter of the first ground of appeal.

6. The second ground of appeal is as follows:

"Alternatively, the starting point of 18 months imprisonment for this type of offences was manifestly excessive and thereby wrong in principle. Insufficient regard for was given for the following facts and matters which were indicative that a lower starting point was called for:

a) at the material time the Appellant was caught in a vicious circle, only recently discharged from jail and was hooked to a loanshark (transcript 26);

b) the scheme was amaeuturish and simple and only involved production of rent receipts on 3 occasions by the Appellant. It could last that long not because of the Appellant's sophistication but because the victim department was late checking him (Transcript 16-17);

c) the money involved was at any rate low and neither did the appellant see it in one place at one time (transcript 20);

d) the appellant has only one dishonesty-related previous conviction - burglary - in 1982 (transcript 25)."

7. Reverting to the approach attacked under the first ground, it can be seen that the Magistrate's approach was essentially the same as that of the sentencing judge in R v CHEN Yueh-ling, Criminal Appeal No. 464 of 1996, 19 November 1996, (unreported) in which Mortimer JA (as he then was) said this at page 3 in the course of giving the judgment of the Court of Appeal:

"... we consider that the judge's approach to the sentence was wrong in principle because he considered totality before the appropriate penalty for each offence. We therefore look anew at the sentences."

8. For the same reason, I look anew at the sentences passed by the Magistrate; and I do so taking into account at the same time everything urged under the second ground as well.

9. The first question is whether to impose concurrent sentences or consecutive ones.

10. The typical case in which concurrent sentences are appropriate is where the offences arise out of the same set of facts: see LUI Shu-tong v R [1961] HKLR 129 at page 136.

11. The Appellant's offences do not arise out of the same set of facts. Crimes are not treated as part of a single criminal enterprise merely because the modus operandi of each is the same: see Attorney-General v SHEK Wai-ip [1995] 2 HKC 368 at page 371. Nor does the fact that a series of offences involve defrauding the same institution mean that consecutive sentences cannot be appropriate: see Attorney-General v Shamsudin, [1987] HKLR 826 at page 832.

12. So the present case is one in which consecutive sentences is a viable option.

13. But, as was pointed out by the Court of Appeal in England in R v Smith [1975] Crim.LR 468, a series of short sentences should be avoided. It is legitimate to impose concurrent sentences even in respect of discrete offences provided that one bears in mind, when imposing concurrent sentences in such circumstances, that the increased criminality arising out of the fact of repeated offences would have to be reflected in a total sentence which is higher than would be the sentence for a single or smaller number of offences: see R v TONG Hoi-fung [1988] 1 HKLR 610 at page 611;AG v LO Ching-fai [1996] 1 HKC 747 at page 750; and R v KWOK Chi-keung [1993] 2 HKCLR 294 at page 297.

14. There is really nothing to choose between these 11 offences. Each is equally serious; and a starting point of 12 months' imprisonment would be appropriate for each on its own. By reason of the enhanced criminality arising out of the fact that there were 11 such offences, I would regard a starting point of 18 months appropriate for concurrent sentences. From that starting point should be deducted a third for the available mitigation, principally the Appellant's guilty pleas. That brings us back to 12 months.

15. Accordingly, I am of the view that the Magistrate has arrived at the right result, albeit by the wrong route. Although I uphold the result of 12 months' imprisonment, it is necessary to vary the sentences from the consecutive sentences passed to concurrent ones of 12 months each making a total of 12 months as before.

16. The appeal has to be allowed, but only for the purpose of bringing about that variation without effecting the net result.

(V. Bokhary)

Judge of the Court of First Instance,
High Court