R. v. YUNG WING HONG

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO.386 OF 1996

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J U D G M E N T

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1. This is an appeal against sentence. The appellant pleaded guilty to three charges relating to three different dates in November 1995.

2. On 25th November 1995, a 75 year old lady was waiting for the lift on an estate in Chai Wan, and the appellant snatched a wallet from her hand. He was chased by a civilian male and caught. When the appellant was interviewed by the police, he admitted two further offences. On 17th November, he had snatched from a 55 year old lady her gold necklace whilst she was in the lift lobby on another estate, and on 20th November he had snatched a gold necklace from a 72 year old lady outside a residential building in Siu Sai Wan.

3. The appellant is aged 31 years, and has a host of previous convictions, almost all for dangerous drugs offences, and one, in 1995, for common assault.

4. The magistrate sentenced the appellant to a term of one year imprisonment on each charge and ordered those terms to run consecutively to each other, making therefore a total of three years imprisonment. That is the maximum term to which magistrates are empowered to imprison when sentencing for more than one offence.

5. The appeal is directed at one point only. It is said that in arriving at the total which is at the limit of the magistrate's jurisdiction, no credit has in effect been given for the appellant's plea of guilty, a mitigating factor which generally attracts a discount in sentence of up to one third.

6. Mr Percy in his able submissions this morning has also stressed the suggestion that the magistrate's approach to the whole question of sentencing in this case had been inappropriate.

7. It is, I confess, not entirely easy to analyse the magistrate's approach to the sentences he has imposed. On one view, he was taking a starting point for each offence of 20 months' imprisonment and has arrived at that in this way : The tariff or guideline for pickpocketing offences is said to be 12 to 15 months after trial, (see Vy Van Kien [1991] 1 HKLR 422). In this case, however, there are, he thought, several aggravating features, namely the age of the women, particularly of course the two ladies who are aged over 70, and the fact that the offences took place in places where dwellers are at particular risk. These offences were not too far off the cases of lift robberies, albeit not as serious in that the victims were not confined in a trap which lifts provide, and that no violence of the kind often associated with lift robberies was used. But snatching necklaces off women involves a degree or rather an aura of violence, which must be frightening to victims, particularly those who are old. Given the aggravating features to which he averred, the magistrate thought that a starting point of 20 months' imprisonment was appropriate. For the 2nd and 3rd offences, he considered that a substantial discount was warranted for the fact that the appellant's guilt of those offences was revealed by him in the course of interviews; that, together with his plea, justified, as the magistrate put it, a minimum sentence of 12 months' imprisonment on each of those charges. For the first offence, the appellant was caught red-handed, and the magistrate said that the appropriate sentence there was 18 months' imprisonment which he again described as a minimum.

8. He said, quite rightly, that the offences were all distinct and separate, consecutive sentences were justified and required. He then addressed the question of totality and said this :

" Having taken all these factors into account, I concluded that the appropriate sentences were in total well in excess of the 3 years jurisdictional limit of the Magistrates Court - and were a minimum of 18 months for the first offence and 12 months for the second and third offences - with all to run consecutively. Indeed, given the guidelines laid down in SHEK SUI TAI, the total of the consecutive sentences should, I thought, be in the order of 4 years imprisonment. I therefore decided on three consecutive sentences that together amounted to the limit of my jurisdiction - namely three sentences of 1 years imprisonment consecutive to each other.

I was well aware that on the face of it, these sentences gave no 'apparent' reduction from the Magistrates Court's maximum of 3 years - and thus offered no incentive for the guilty pleas. Nevertheless, I considered these offences were very serious and that in this particular case, the sentences were merited as they still signified a reduction from the appropriate sentences - had they been dealt with either separately in the Magistrate's Court or by the District Court."

9. I have some difficulty with this approach. The guidelines in A.G. v. Shek Sui Tai [1989] 1 HKLR 178 (C.A.) to which the magistrate refers, could only be used to determine the appropriate sentence for each offence. That was an exercise upon which the magistrate had already come to a conclusion relying on Vy Van Kien as well as Shek Sui Tai. He apparently decided the appropriate sentence was 18 months for the first charge and 12 months each for the 2nd and 3rd. How Shek Sui Tai helped him to decide an appropriate totality is difficult to follow.

10. Alternatively, the magistrate has arrived at a sentence which he considers appropriate to each offence by using the appropriate totality as he sees it and then working backwards as it were to come to the appropriate sentence for each offence. In saying this, I have in mind the passage from his reasons for sentence to which I have just referred, and also his emphasis that 18 months, 12 months and 12 months respectively were minimums only. That would not be a correct approach. The correct approach is to decide the appropriate sentence for each offence and only then to apply the totality principle.

11. Mr Percy's point is that the magistrate has taken a starting point for the offences together as one which is outside his jurisdiction to impose and then forced himself down as it were only because of the limit to that jurisdiction, so that in the event the appellant has been given no credit for his pleas. The submission stems from the principle which is established by Kwok Chi Kwan [1990] 1 HKLR 293, and Ho Sik Yin, Cr App 126/91, that where there arise cases before a magistrate or District Courts, where the court is of the view that the appropriate term exceeds the limit of that court's sentencing jurisdiction, it is inappropriate, where there has been a plea of guilty, to arrive at a sentence which equates with that limit, for that would deprive the defendant of any credit for his plea. The advantage which the appellant has gained in the case being brought in the wrong court is an advantage, as the court said in Kwok Chi Kwan, which is unsolicited by the appellant "... and it should not result in what might be termed a legitimate expectation of some recognition of a plea being denied him" (see the judgment of Silke, J.A. at p.296). The correct approach where the wrong court has been chosen by the prosecuting authority in relation to a particular offence is, according to the judgment in Ho Sik Yin, that the discount for the guilty plea should be one from the limit of the particular court's jurisdiction and not from the starting point which the offence truly requires.

12. It is, as I have indicated, not easy to assess quite how the magistrate approached the matter. Had he come to the conclusion that 18 months, 12 months and 12 months respectively were the appropriate sentences for each offence, and then arrived at a total of 31/2 years reduced to take account of the limit to his jurisdiction, he could not in the approach to sentencing, in my judgment, be faulted. If that is what he has done, he has taken starting points well below his sentencing limit for each offence and reduced them for the mitigating factors. He has in no one case taken a starting point above the limit of his sentencing power and reduced the sentence after taking into account the plea of guilty to the limit of that power. If that is how the magistrate has approached the case, then what the appellant seeks to achieve today in advancing his appeal, seems to me to be a double benefit, namely that there should be a reduction for each offence because of the plea of guilty, and then a further reduction for that plea when deciding what is the right totality. These were entirely separate offences and that required consecutive sentences. Once the approach to the question of the appropriate sentence for each offence is strictly correct, and if the approach to the question of totality is strictly correct, ignoring in the first instance the issue whether that total exceeds the limit of the sentencer's powers, and if then the sentencer recognising that he cannot give effect to that appropriate total, reduces the totality to one which is within his sentencing limits, the result, it seems to me, is not assailable.

13. In this particular case, I do not in any event quite see why, once the magistrate had decided that the first charge warranted a heavier sentence than the sentences required for the 2nd and 3rd, he has then gone on to impose the same sentence for each. The magistrate should have imposed the correct sentence for each offence quite separately, and then given effect to the totality by the use of concurrent and consecutive terms.

14. Applying the approach which I have specified, it is, I think, necessary to reappraise the facts and the sentences . These were indeed thefts of a serious kind, bordering, albeit not constituting, robberies. I do not think that the appellant could have complained had the case been brought in the District Court with starting points adopted of up to 21/2 or even 3 years. Given the limit to the magistrate's jurisdiction, I do not think that the appellant would have had any justifiable grievance with the term of 18 months to which the magistrate referred after plea on the first charge. The minimum term for the 2nd and 3rd charges were stated as 12 months given particular discount for the fact that the appellant's complicity in those offences was discovered only on interview. Given the starting points and the mitigating factors, 12 months was nevertheless generous. In the event the sentences should have been no less than 18 months on the first charge and 12 months on the second and third. There was nothing wrong with the totality for all three of three years. Accordingly, although the result will be the same, the sentence on the 1st charge is increased to 18 months, and I shall leave the other sentences undisturbed. I shall order that the term on the 2nd and 3rd charges to run consecutively to each other, that 6 months of the 18 month term to run concurrently to each of those terms but 12 months of that 18 month term will run consecutively to the two consecutive 12 month terms, making a total of three years. Accordingly this appeal is dismissed.