HKSAR v. LEE SHUNG MOON

HCMA 1114/1999

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 1114 OF 1999

(ON APPEAL FROM NKCC 1859/1999)

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J U D G M E N T

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1. The appellant is a man in his 20s who appeared before J. T. Glass, Esquire sitting in the Magistrate's Court at North Kowloon on 28 October 1999 and pleaded guilty to one charge of attempted burglary. He was sentenced to 16 months' imprisonment to run consecutively to the sentence which he was already undergoing.

2. He now appeals against sentence. His general grounds of appeal are that the sentence was too severe. In a letter attached to the Notice of Appeal against Sentence, he has set out matters which have already been urged upon the Magistrate in mitigation and which the Magistrate has considered.

3. The Magistrate has, in sentencing him, said this:

"I therefore took a starting point at my maximum jurisdiction of two years and then gave a one third discount for the Defendant's guilty plea. I found no other grounds for reducing the sentence further bearing in mind that the Defendant had received the benefit of being sentenced in the Magistracy. As the offence was quite separate from the sentence he was presently serving I ordered my sentence of 16 months to run consecutively to it. I found a suspension of the sentence I imposed inappropriate in view of the Defendant's record and the sentence he was presently serving."

4. In circumstances such as these, the sentencing court ought to consider the question of totality, and the mere fact that the offence for which the sentencer is imposing punishment is separate from the offences for which the accused is presently serving a sentence is no reason why totality ought not to be considered. It may well be that in some cases totality does not require any adjustment. But whether or not it does is to be determined after considering the principle. Here it does not appear that the Magistrate has considered the totality principle. So I must consider it myself. Doing so, I feel that some adjustment should be made.

5. In the result, I allow this appeal to the extent of ordering that the 16-month sentence passed by the Magistrate commence three months prior to the expiration of the sentence which he was already serving.