THE QUEEN v. CHAN HEI-MAN

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY CRIMINAL APPEAL No. 888 OF 1989

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BETWEEN

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J U D G M E N T

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1. The Appellant pleaded guilty on 23rd June, 1989 to two counts of burglary and 14 charges of theft. Some of the offences were committed in August, 1987 and the remainder in June, 1988. The overall effect of the sentences imposed by the learned magistrate was that he was sentenced to a total period of imprisonment for 24 months.

2. In mitigation he told the magistrate that he was released from prison in April, 1989, was immediately arrested and charged with these offences. The magistrate was told by the Prosecutor that he was then serving a sentence of imprisonment for 12 months imposed in case NK 6087/89 which was also a "theft case", the details of which had not yet reached his criminal record. The magistrate ordered that the sentences under appeal be served consecutively with any sentence then being served.

3. The Appellant does not complain about the length of the sentences under appeal but about the order that they be served consecutively.

4. When the Appellant was sentenced on 23rd June, 1989 his criminal record sheet showed convictions on two earlier occasions. On 7th December, 1984 he received a suspended sentence of 9 months in respect of a burglary offence and on 3rd November, 1988 he was sentenced to concurrent terms of imprisonment for 9 months and 4 months for burglary and forgery of a cheque.

5. When the Appellant first appeared, before me on 19th September, 1989 Mr. Stone, who appeared for the respondent, produced the Appellant's upated criminal record. This showed that his next conviction after those on 3rd November, 1988, was on 30th June 1989 when for three counts of theft and one of obtaining property on a forged instrument he was sentenced to concurrent sentences of imprisonment for six months. Following that his record states that on 14th July, 1989 he was convicted on two counts of uttering a forged document and three counts of theft for which he was sentenced to imprisonment for a total period of 12 months. The record does not show the convictions for which he received the sentences under appeal and the sentences in case NK 6087/89 were, according to this updated record, passed on 14th July, 1989. When my clerk drew this to my attention I was puzzled as to how the Prosecutor could have told the Court on 23rd June, 1989 that the Appellant was undergoing a sentence not handed down, according to the record sheet, until three weeks later. I therefore sought the files in respect of the convictions recorded on 30th June and 14th July, 1989. I now have those files and they show that the Appellant's record since his convictions on 3rd November, 1988 are incorrectly recorded on the Criminal Record sheet supplied to me through Mr. stone on 19th September. His up to date record following on from the November convictions should, according to Magistracy files, be as follows:-

6. All the offences in items 3, 4 and 5 (as I have listed them) were committed prior to his being imprisoned in November, 1988.

7. When he was before me on 19th September he told Me that he is now remorseful and intends to turn over a new leaf. He was dealt with by three Magistrates, one at North Kowloon, one at San Po Kong and one at Tsuen Wan. As a result, he was deprived of the opportunity of having the offences in items 3, 4 and 5 considered by the same Magistrate on the same occasion. As he is only 24 years old I have decided that he should be given the chance he has asked for. In order to do that, and in order to tidy up his Criminal Record so that the Correctional Services Department may accurately calculate what I seek to achieve, I grant him leave to appeal against the sentences passed on 30th June, 1989 (item 5), allow the appeal to the extent that the order that those sentences be served consecutively to other sentences will be set aside and be replaced by an order that they be served concurrently with all other sentences. As regards this appeal I allow it to the extent that the order that the sentences be served consecutively with other sentences will be set aside and be replaced by an order that they be served concurrently with all other sentences. The overall effect is that in respect of items 3, 4 and 5 he will serve a total period of imprisonment for 24 months.