ATTORNEY GENERAL v. NG HUNG KEI

IN THE COURT OF APPEAL

Application for Review
No. 12 of 1987

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J U D G M E N T

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1. This is an application by the Attorney General by leave of the Chief Justice who, we might mention, since the amendment of the Supreme Court Ordinance may no longer be an appropriate tribunal in this context, and pursuant to section 81A of the Criminal Procedure Ordinance for the review of sentences passed by Deputy Judge Barnett, as he then was, in the High Court on 30th April of this year on the grounds that they were wrong in principle and manifestly inadequate.

2. The respondent, Ng Hung-kei, had pleaded guilty in the Magistrate Court on 4th March 1987 to four offences; both robbery and possession of an imitation firearm on 23rd and 27th December 1986 respectively. The magistrate committed him to the High Court for sentence pursuant to section 81B of the Magistrates Ordinance. The terms of sub-section (5) are material:

"An accused who is committed for sentence shall as soon as practicable he brought before the High Court for sentence, and any judge of that Court shall have the same powers of sentencing or otherwise dealing with the accused, and of finally disposing of the charge and of all incidental matters, as he would have had if the accused on arraignment at any criminal sittings of the High Court had pleaded guilty to the offence charged on an indictment duly presented."

3. The circumstances of the first pair of offences were that having been bound over at Causeway Bay Magistrates Court that morning, after being convicted of burglary, the respondent entered the Park View Fashion Shop, also in Causeway Bay, the same evening wearing a white mask. He produced what appeared to be an automatic pistol, pointed it at the head of the proprietor and ordered him to deliver the money in the cash desk. The proprietor handed over $730 to the respondent who then ran off.

4. As to the second pair of offences the respondent entered the Sun Hing Porridge and Noodle shop, again in Causeway Bay, by a side door in the early hours of the morning. Once more he was masked and carrying what appeared to be a pistol. He announced to the employees, who were clearing up after the departure of the last customers, that he had come to rob and that anyone who moved would be harmed. He elicited the whereabouts of the shop’s cash box, abstracted the day’s takings of $2,000 and fled. He was later stopped by police constables and, following a struggle in the course of which he produced the same simulated pistol and received injuries, was arrested. After treatment in hospital he admitted all four offences. The available evidence against him in relation to the second pair was, it would appear, overwhelming.

5. Deputy Judge Barnett sentenced the respondent to four years imprisonment on each of the robbery charges and to one year of imprisonment on each of the firearms charges; all sentences to run concurrently. This gave rise to an effective total of four years.

6. The respondent was aged some 23 years when sentence and had pleaded guilty to all offences at the first opportunity. The trial judge had the advantage of a probation report which showed that the respondent had Trial affiliation and wanted money to clear up substantial debts owing to a loan shark by the woman with whom he was cohabiting and who was pregnant. He had two other convictions; one some seven or so years previously for possessing dangerous drugs for the purposes of unlawful Trafficking, in relation to which he had been sent to a Training Centre, and the other, committed on 30^th November 1986, for burglary in relation to which he had been bound over. He had been employed in the catering and hotel industries but his last employment had been terminated immediately after his arrest for the latter crime. All these matters the Deputy Judge took into account.

7. It is a well understood principle of sentencing that different offences, not being part of one transaction, are usually best dealt with by consecutive sentences and that different offences which are part of one transaction, often involving the same victim or victims, are best dealt with by concurrent sentences; the overall term of imprisonment being kept in mind in either event. Here was a classic case for the application of these principles namely two different transactions calling for two pairs of concurrent sentences, each for a robbery and a firearms offence to run consecutively. In ordering concurrency as between all the sentences he imposed the Deputy Judge, in our view, erred.

8. The maximum sentence which may be imposed for robbery after conviction on indictment is “life” imprisonment and for possession of an imitation firearm contrary to section 17(2) of the Firearms and Ammunition Ordinance the sentence is fourteen years. As the Deputy Judge stated at the hearing a term of seven to eight years would have been appropriate for either offence of robbery involving, as each did, the use of an apparent pistol. He then halved this figure; ostensibly in recognition of all the factors which have just been outlined. However, even in the light of such factors and allowing for the proper exercise of compassion this was an excessive discount in relation to one pair of offences let alone two. There was no question of this respondent making himself available to give evidence for the Crown in a case of great gravity. The reasons for the judge’s approach have been the subject of eloquent advocacy by Mr. Hoo, on the respondent’s behalf, but we remain satisfied that the sentences of four years coupled with the order for concurrency, having the effect that this young man was sentenced overall to only four years imprisonment, rendered the sentences manifestly inadequate. Taking the totality principle into account we would consider the appropriate sentences to have been five years for each robbery with concurrent sentences of one year for each robbery with concurrent sentences of one year for possession of the firearm. Making the sentences for the separate transactions consecutive a proper overall result would have been ten years imprisonment.

9. We quash the sentences imposed below and, pursuant to section 81B(1)(c) of the Criminal procedure Ordinance, but providing for the reduction which this Court consistently givens on review, substitute sentences of four years for robbery and one year for possession of an imitation firearm, concurrent, in relation to each of the two transactions and order that the concurrent sentences in relation to both run consecutively to each other giving an effective overall sentence of eight years imprisonment.