SIN CHI KIN v. THE QUEEN

Criminal law - sentencing - two offences - subsequent offence sentenced prior to previous offence - concurrent consecutive sentencing dilemna - sentencing discretion - generally undesirable for appellate court to tinker with trial court's sentence by making minor adjustments.

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

Magistracy Appeal No.192 of 1985

BETWEEN

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REASONS FOR JUDGMENT

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1. At the conclusion of the hearing I allowed this appeal to the limited extent of varying the sentence and now give my reasons.

2. The appellant on 16th January 1985 was convicted of one charge of theft contrary to Section 9 of the Theft Ordinance, Cap.210 and sentenced to 2 years imprisonment. From that sentence he appeals. The appellant had pleaded guilty to the charge that on 14th November 1984 he stole one wallet containing $2,800 and one telephone book from Yan Yuk-kau at Sheung Shui Railway Station, Sheung Shui.

3. The appellant admitted a conviction for robbery in 1981 when he was sentenced to 4 years imprisonment and for loitering and giving false information in 1984, when he was fined $500 and $150 respectively. On sentence it was further pointed out to the learned Magistrate that on 19th December 1984 the appellant had been sentenced to 1 year's imprisonment for a theft offence committed on 11th December 1984 while on bail in respect of the present offence. The appellant admitted this latter offence and in mitigation asked that the sentence imposed for the present offence be concurrent to the sentence of 1 year's imprisonment he was already serving.

4. The learned Magistrate recorded that the prior conviction was imposed for a theft offence which was committed subsequent to the present offence. For that reason he appeared to be concerned whether the sentence for the present offence, should have been concurrent or consecutive to the sentence imposed on the prior conviction, when that offence had been committed subsequently. The Magistrate, of course, had an unfettered discretion to make either order.

5. In the event he ordered that the sentences should be served concurrently. Ignoring the prior conviction the appellant had a poor record and the learned Magistrate quite properly imposed an immediate custodial sentence. In considering the term of imprisonment he considered a sentence of 2½ years would be appropriate but taking the appellant's plea of guilty into account he reduced that term by 6 months down to 2 years.

6. By ordering that 2 year sentence to be served concurrently with the prior sentence of 1 year the practical result for the appellant was that in relation to both convictions he would serve a term of 2 years. On appeal it was submitted that 2 years imprisonment for the present offence was excessive.

7. After considering those submissions I am satisfied that the end result achieved by the learned Magistrate, in resolving the concurrent-consecutive dilemna, was reasonable. The only question remaining was whether that solution was right in principle. In considering that question I also appreciate that it is undesirable for an appellate court to disturb a sentence imposed by a trial court by making merely minor adjustments for that amounts to nothing but tinkering.

8. However, in order that the sentence imposed should better accord with principle, I am of the opinion that the present opportunity should be taken to vary the sentence, although it will have little effect upon the total period to be served by the appellant. In my view a sentence of 18 months imprisonment would have been adequate. Allowing the same 6 months discount as the learned magistrate for the guilty plea, would reduce the sentence to 12 months.  The times and circumstances of the two offences were sufficiently different that a consecutive rather than a concurrent sentence should be imposed.

9. On this basis the appeal is allowed by reducing the sentence from 2 years to 1 year but the sentence is further varied by ordering that it be served consecutively to the sentence of 1 year's imprisonment imposed in relation to the prior conviction on 19th December 1984 in San Po Kong Magistracy Case No.35252 of 1984.