HKSAR v. WANG QUANWEN

CACC 263/2014

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 263 OF 2014

(ON APPEAL FROM DCCC NO. 472 OF 2014)

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JUDGMENT

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Introduction

1.  The applicant applies for leave to appeal sentences imposed on him of 3 years 4 months’ imprisonment for theft of wood from incense trees and 15 months’ imprisonment for remaining in Hong Kong after having landed unlawfully.  The judge ordered the two sentences to be served consecutively making a total sentence of 4 years 7 months’ imprisonment.

Discussion

2.  In calculating the sentence for charge 1 the judge adopted a starting point of 4 years’ imprisonment, reducing it to 32 months’ imprisonment to allow for the applicant’s guilty plea and then enhancing it by 25% pursuant to section 27(2)(d) of the Organized and Serious Crimes Ordinance, Cap 455.  By this route he arrived at a final sentence of 3 years and 4 months’ imprisonment.  Using the OSCO power to enhance the discounted sentence rather than the starting point is arguably contrary to principle.

3.  When the judge was considering whether to make the sentence for the second offence consecutive to or concurrent with the sentence for the first offence he does not appear to have considered the totality principle and if so has, arguably, erred.

4.  For these reasons I grant leave to appeal.