HKSAR v. LAM SEE CHUNG STEPHEN

CACC 225/2020,
CACC 5/2021
& CACC 9/2021
(Heard Together)

[2022] HKCA 990

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 225 OF 2020, NOS 5 & 9 OF 2021

(ON APPEAL FROM DCCC NOS 346 & 625 OF 2019, 365 & 626 OF 2020)

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J U D G M E N T

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Hon Zervos JA (giving the Judgment of the Court):

1.  The appellant pleaded guilty to numerous fraud and related offences in three separate cases before District Court Judge Katherine Lo (the Judge) and was sentenced to a total term of 82 months and 148 days’ imprisonment (the equivalent of 7 years and 3 months’ imprisonment).

2.  The appellant is an unrepentant recidivist with a long list of convictions for offences involving fraud and dishonesty.  He committed a spree of crimes for which he was eventually charged and brought before the courts.  Two cases were consolidated and transferred to the District Court (DCCC 346 and 625/2019).  Sometime later, two other cases were transferred consecutively to the District Court (DCCC 365/2020 and DCCC 626/2020). The three cases were heard together on plea day on 1 September 2020.  The appellant indicated to the plea day judge that he would plead guilty to all the charges in each of the three cases.  The prosecution then applied for the three cases to be heard by the same judge but at different times in an effort to address the jurisdictional limit of the District Court of 7 years’ imprisonment.  The defence opposed the application and requested that the three cases be heard by the same judge on the same occasion.  The prosecution’s application was granted. 

3.  At the hearing of the first case, the defence renewed its application for the three cases to be heard at the same time but this was refused.  The Judge conducted three separate hearings and accordingly sentenced the appellant in respect of each one, taking into account the totality principle and the sentence that had been passed in the previous case.

4.  The issue that arises in this appeal is whether the appellant was correctly sentenced for a total term of 7 years and 3 months’ imprisonment, which exceeded the seven-year jurisdictional limit of the District Court, even though he was dealt with on three separate occasions by the same judge.

Procedural history

5.  The appellant was first brought before the Magistracy in WKCC 2011/2018 on 5 May 2018.  He was granted court bail and he appeared in the court hearings until he failed to attend the one on 4 September 2018. The appellant was re-arrested on 23 February 2019 and thereafter he was remanded in jail custody.[1]

6.  The appellant was again brought before the Magistracy in WKCC 1023/2019 and WKCC 1260/2019 on 13 and 27 March 2019 respectively.[2]

7.  On 6 May 2019, on an application by the prosecution, WKCC 2011/2018 was transferred to the District Court with the new case number DCCC 346/2019.[3]

8.  In a letter dated 17 July 2019, the appellant requested that the two cases, WKCC 1023/2019 and WKCC 1260/2019, be consolidated and transferred to the District Court, and that they be further consolidated with DCCC 346/2019, “on the condition that he indicated his guilty pleas to all the charges in open court”.  The prosecution acceded to this request and applied for the consolidation of the two cases and the transfer of the consolidated case to the District Court on 14 August 2019.  The consolidated case of WKCC 1023/2019 and WKCC 1260/2019 was assigned the case number DCCC 625/2019.  DCCC 346/2019 and DCCC 625/2019 were then consolidated in the District Court on 17 September 2019.[4]  However, DCCC 346 and 625/2019 (consolidated) was subject to a series of adjournments because of ongoing investigations against the appellant for other offences.  

9.  On 4 June 2020, the appellant was brought before the Magistracy in TMCC 879/2020.  The prosecution applied for the transfer of this case to the District Court, which became DCCC 365/2020.[5]

10.  On 17 June 2020, the appellant next appeared in the Magistracy in KCCC 1448/2020.  Counsel representing the appellant informed the prosecution that “the appellant intended to plead guilty to all the charges faced by him and wished to have all three cases, namely DCCC 346 and 625/2019 (consolidated), DCCC 365/2020 and KCCC 1448/2020, heard before the same judge in the District Court.  The prosecution agreed to and applied for the transfer of KCCC 1448/2020 to the District Court on 13 August 2020”, which became DCCC 626/2020.[6]

11.  As noted, the three cases were heard together on plea day in the District Court on 1 September 2020.  The appellant through his counsel indicated he would plead guilty to the charges in the three cases.  An application was made by the prosecution that the three cases be heard by the same judge but at different times.  The defence opposed the application and applied for the cases to be heard by the same judge on the same occasion.  The court granted the prosecution’s application and set down the three cases before the same judge for plea and sentence but on different dates: DCCC 346 and 625/2019 at 9.30 am on 30 November 2020; DCCC 365/2020 at 9.30 am on 1 December 2020; and DCCC 626/2020 at 9.30 am on 2 December 2020.[7]

12.  At the hearing of DCCC 346 and 625/2019 (consolidated) on 30 November 2020, after the appellant had pleaded guilty to the charges, his counsel submitted that as the Judge was to deal with all three cases she had to apply the totality principle in arriving at an overall sentence.  He applied for the three cases to be sentenced on the same occasion.  The Judge then adjourned DCCC 346 and 625/2019 to 10 am on 11 December 2020; adjourned DCCC 365/2020 for plea at 2.30 pm on 11 December 2020 and sentence at 10 am on 23 December 2020; adjourned DCCC 626/2020 for plea at 2.30 pm on 11 December 2020 and sentence at 10 am on 31 December 2020 (which was later re-fixed to 5 January 2021). 

13.  On 11 December 2020, the Judge, having heard the arguments of both sides, gave the following ruling rejecting the defence application:[8]

“… This is the application by the defence to adjourn the sentencing in DCCC 346 and 625/2019 to 31 December 2020, ie the scheduled sentence hearing of DCCC 626/2020.

On reading the grounds of the application, this court notes that in fact the defence is actually asking this court to adjourn the scheduled sentencing hearing for both DCCC 346 and 625/2019 and DCCC 365/2020 to the same time as the sentencing of DCCC 626/2020. In fact, such application have been made before, at least according to the court record, Her Honour Judge Woodcock on, I think, 1 September 2020 and was refused. There is no change in the circumstances since then.

The main ground for the application is that should the final sentence for DCCC 346 and 625/2019 is served before 31 December 2020, then injustice would result as defendant is deemed a new detainee for the other cases and his period of detention would count only from the date after the expiry of the sentence in the DCCC 346 and 625/2019.

Firstly, this court agrees with the sentencing principle referred to by prosecution arising from the case of SJ v Wong Yin Tak, CAAR 9/1999, and the remarks made by Yang JA as he then was in the case of R v Ng Kin Ming, CACC 275/1994.

Accordingly, the sentence, even though discounted by reason of defendant’s guilty plea in the 346 and 625 as suggested by defence counsel in the circumstances of the case, in my view it is clearly too optimistic in view of the, as described by the prosecution, the seriousness of the charges, the number of charges as well as all the aggravating circumstances.

The sentence to be imposed on the defendant will not expire before 31 December 2020 and therefore the so-called injustice will not take place.

As to whether it is likely that this court will impose more than 7 years’ imprisonment after plea in total for the three cases, as this court at the moment is not fully informed of the facts of the case as well as mitigation, etc, it is premature for this court at the moment to speculate and in order that the hands of the court would not be tied, following the course in HKSAR v Wong Wan Shan, CACC 9 and 10/2002, this court would maintain that the sentencing of these three cases be heard on the separate occasions as scheduled.

  So the application from the defence is refused.”

DCCC 346 and 625/2019

14.  On 11 December 2020, in DCCC 346 and 625/2019, the appellant pleaded guilty to 16 charges of fraud (Charges 1 to 3, 6, 9, 10, 13, 14, 17, 18, 21, 22, 25, 26, 29, and 32), 7 charges of driving without a valid driving licence (Charges 4, 7, 11, 15, 19, 23 and 27), 7 charges of using a motor vehicle without third-party insurance (Charges 5, 8, 12, 16, 20, 24 and 28), 1 charge of possession of an identity card relating to another person (Charge 30), 1 charge of failing to surrender to custody without reasonable cause (Charge 31), and 3 charges of theft (Charges 33 to 35).  On the same day, he was sentenced to imprisonment for 56 months and 120 days (the equivalent of 5 years’ imprisonment) and disqualified from driving or holding a vehicle licence for 18 months.

15.  The 16fraud charges involved the appellant defrauding 16 victims.  The victims were car owners who posted online advertisements to sell their cars.  He would purport to purchase the cars by presenting signed personal cheques which were subsequently dishonoured.  He would later resell the cars to car dealers.  The dishonoured cheques involved a total amount of $426,500 and the cars were resold at a total sum of $167,640.  These fraud charges occurred from 14 March and 23 April 2018, except for Charges 1, 2 and 32, which occurred in March 2017.  The traffic offences concerned the appellant not holding a valid driving licence at the time he purportedly purchased and drove away with the cars.  In one of the fraudulent transactions, he used another person’s identity card and in relation to the theft charges he misappropriated money paid by clients to his employer in the sum of $34,000.  The theft offences occurred on 23 and 24 September and 6 October 2017.

16.  The appellant was arrested on 24 March 2017 in relation to a deception case which allegedly occurred on 16 January 2017.  He was put on police bail on 25 March 2017 but failed to answer bail on 12 July 2017.  He was rearrested on 3 May 2018 and granted bail.  However, he failed to attend a court hearing on 4 September 2018 (Charge 31).  He was later located and rearrested on 23 February 2019.

DCCC 365/2020

17.  On 11 December 2020, in DCCC 365/2020, the appellant pleaded guilty to 5 charges of fraud (Charges 1 to 3, 5 and 6), 1 charge of attempted fraud (Charge 8), 3 charges of theft (Charges 4, 7 and 9), and 1 charge of possession of an identity card relating to another person (Charge 10).  On 23 December 2020, he was sentenced to imprisonment for 30 months and 4 weeks, with 17 months and 4 weeks of this sentence ordered to run consecutively to the sentence in DCCC 346 and 625/2019, resulting in a total sentence of 73 months and 148 days’ imprisonment.

18.  The appellant committed the 6 fraud charges over a period of 21 months (between 2 May 2017 and 22 February 2019) by posting or responding to advertisements for the sale of goods on social websites, and requesting the victims to deposit money into a bank account held by him.  There were altogether 53 victims and the amount of money involved was $525,050, while the actual loss to the victims was $496,050.  The 3 theft charges related to an overpayment of $7,500 and the theft of two car plates.

DCCC 626/2020

19.  On 23 December 2020, in DCCC 626/2020, the appellant pleaded guilty to 2 fraud charges (Charges 1 and 2).  On 5 January 2021, he was sentenced to 16 months’ imprisonment, with 9 months of this sentence ordered to run consecutively to the sentence of 73 months and 148 days’ imprisonment for the two previous cases, resulting in a total sentence of 82 months and 148 days’ imprisonment.

20.  The appellant committed the 2 fraud charges between 12 and 26 May 2017.  He falsely represented to the victim, a restaurant operator, that he was acting as a go-between for a company offering a contract for the provision of meal boxes.  The victim paid the appellant the sum of $236,000 for the purpose of tendering for the contract.  He later falsely represented to the victim that he would set up a company in order to bid for future contracts, for which the victim paid the appellant $25,246.

The appellant’s criminal history

21.  The appellant has an appalling criminal record, and his persistent and relentless offending in the present three cases was clearly deserving of severe punishment.  He has a long history of committing offences of fraud and deception and breaching conditions of bail.  He is a serious recidivist who has flouted the law at will and with total disregard for legal processes. 

22.  The appellant was 38 years of age at the time of his sentence.  As revealed by his criminal record, he first became involved in fraudulent conduct sometime before 20 March 2009, when he was sentenced to 7 months’ imprisonment for one offence of obtaining property by deception and six offences of fraud.  He next came before the courts on 18 May 2010 charged with one offence of fraud and one offence of attempting to obtain property by deception.  He was sentenced to 200 hours of community service and ordered to pay compensation of $10,000.  The next case related to offending that occurred in September 2008 when he gave two dishonoured cheques in the sums of $100,000 and $150,000 to repay part of a debt he owed to his then girlfriend.  He was charged with two offences of evasion of liability by deception which were laid on 11 November 2010.  He pleaded guilty to both charges on 7 June 2011 and his case was re-fixed for 11 August 2011 to allow him time to pay compensation to his victim.  However, he failed to appear at the adjourned hearing and a warrant was issued for his arrest.  By the time he was sentenced for these two offences on 21 December 2011, which sentence was 16 months’ imprisonment, he had committed a large number of other fraud offences.

23.  In June 2011, he dishonestly obtained three amounts of money totalling $27,000 from the same victim and was charged with three offences of fraud.  On 17 August 2011, he failed to attend court in respect of another case, involving five fraud offences that he committed between September and November 2008.  A warrant was issued for his arrest.  He was eventually sentenced to 3 months’ imprisonment for the five fraud offences on 8 February 2012, and to 4 months’ imprisonment for the three fraud offences on 25 May 2012.  At this stage, the appellant was serving a total sentence of 22 months’ imprisonment.

24.  Between 23 to 31 August 2011, the appellant purchased three used cars from the same victim and paid for them by cheques totalling $184,341, which were all dishonoured.  He was subsequently charged with three offences of obtaining property by deception.  Also in August 2011, the appellant obtained two payments totalling $18,500 and a loan of $5,000 from the victim by means of deception which became the subject of three fraud offences.  In November 2011, he obtained monies from two different victims also by means of deception which became the subject of two fraud offences.  On 16 and 19 December 2011, the appellant bought two used cars from two different victims which he paid by cheques in the sum of $48,000 and $45,000 respectively.  Both cheques were subsequently dishonoured and in respect of this conduct, he was charged with two offences of obtaining property by deception. 

25.  On 4 July 2012, the appellant was brought before the Magistrate’s Court for sentence in respect of all the fraud offences that made up his crime spree between June and December 2011.  The 13 offences were contained in four different informations and involved seven different victims. The appellant was sentenced to a total of 26 months’ imprisonment but it was ordered that 4 months of this sentence be served concurrently with his existing sentences (22 months’ imprisonment) thereby resulting in the appellant then serving a total sentence of 44 months’ imprisonment.

26.  On 10 August 2012, the appellant was brought before the District Court for sentence in respect of one count of theft and three counts of obtaining property by deception in which the appellant stole a credit card and fraudulently used it on three occasions between January and February 2011.  He committed these offences whilst on court bail for the September 2008 dishonoured cheque offences and on police bail for the September to November 2008 fraud offences.  He was sentenced to 32 months’ imprisonment, 16 months of which were ordered to be served consecutively to a sentence of 44 months’ imprisonment the appellant was serving, resulting an overall sentence of 60 months.  The appellant appealed against his sentences imposed by the judge which became the subject matter in HKSAR v Lam See Chung Stephen [2013] 5 HKLRD 242.

27.  On 3 September 2013, McWalters J (as he then was), giving the judgment of the Court,[9] reduced the appellant’s sentence of 5 years’ imprisonment to 4 years and 3 months’ imprisonment after applying the totality principle.  As explained by McWalters J, the purpose of the totality principle was to achieve a just and balanced sentence that would not disproportionately punish him for his offending.  He discussed the relevant sentencing principles, noting that where an offender preys upon the community, the sentence should seek to protect it from his depredations.  He added that at times a severe sentence will be an appropriate sentence response and just because a sentence is severe does not mean that it is not just and balanced.  These words from the Court of Appeal did not resonate with the appellant at all for not long after he served his sentence he was back engaging in the same criminal conduct with greater vigour and determination than before.

28.  On 17 September 2015, the appellant was sentenced 12 months’ imprisonment in relation to five offences of evasion of liability by deception and two offences of obtaining property by deception. On 20 June 2018, the appellant was sentenced to 7 days’ imprisonment for shoplifting. 

The reasons for sentence

29.  The appellant’s past offending needs to be considered together with the numerous offences he committed in the present cases which spanned a period of 2 years, from March 2017 to February 2019.  He was convicted of 47 offences, which consisted of 24 fraud and 6 theft offences.  There were a total of 71 victims with losses exceeding $1.2 million.  As pointed out by the respondent, the appellant practiced his deceit and deception on multiple victims, sometimes involving more than one victim in a single day.  He employed an array of deceitful methods or means to swindle people out of money.  His brazen exploitation of others was highly calculated and unrelenting.

30.  The Judge carefully assessed the sentence for each offence, making appropriate adjustments in order to address the aggravating and mitigating factors, and passed a total sentence that was fair and balanced by the application of the totality principle.  No real issue is taken by the appellant for the sentences passed by the Judge.  The complaint is centred on the total sentence, bearing in mind the jurisdictional limit of the court.

The grounds of appeal

31.  Mr Wong’s grounds of appeal can be distilled to the following two arguments.  The first is that the resultant sentence being the equivalent of 7 years and 3 months’ imprisonment exceeded the jurisdictional limit of the District Court by 3 months.  He complains the prosecution deliberately and unfairly broke up the case into three separate cases as a means of achieving a sentence that exceeded the District Court’s jurisdictional limit of 7 years’ imprisonment.

32.  The second is that the total sentence was manifestly excessive bearing in mind the jurisdictional limit and the need to provide a meaningful reduction for the appellant’s guilty pleas.  Mr Wong does not take issue with the starting point or the ultimate sentence imposed for each offence. 

Discussion

33.  The criminal jurisdiction of the District Court is partly defined in terms of the maximum penalty that may be imposed, namely 7 years’ imprisonment which is provided by s 82 of the District Court Ordinance, Cap 336, (the Ordinance) as follows:

“(1) Where the Court sentences any person to undergo a term of imprisonment for an offence, and such person is already undergoing, or is at the same time sentenced to undergo, imprisonment for another offence, it shall be lawful for the Court to direct that such imprisonment shall commence at any time during or at the expiration of the term of imprisonment which such person is then undergoing or has been so previously sentenced to undergo as aforesaid.

(2) Notwithstanding the provisions of any enactment in force at the commencement of this Ordinance and notwithstanding that proceedings have not been taken by way of indictment, the Court may impose any penalty and make any order provided by law for or in connexion with any offence of which it has cognizance:

Provided that—

(a) no sentence of imprisonment passed by the Court shall exceed 7 years in respect of one offence and where 2 or more consecutive terms of imprisonment are imposed by the Court under subsection (1), the aggregate of the said terms of imprisonment shall not exceed 7 years;

…”

34.  Over the years the section has been the subject of judicial consideration in respect of the jurisdictional limit of the court and its application.  After a review of several cases, the Court of Appeal in R v Li Yan [1998] 4 HKC 12 laid out the following principles in respect of s 82:

“5. ... The principles which are to be elicited from these cases and the jurisdictional limit laid down in Section 82 of the District Court Ordinance, Cap. 336 are as follows:

(1) On any one occasion the District Court may not impose a greater sentence than 7 years’ imprisonment.

(2) Such a sentence may be consecutive to a sentence passed previously which is being served by the accused.

(3) In order to assess the correct sentence, it is permissible for the judge to adopt as a starting point, a total sentence of more than 7 years if the offence or offences warrant such a sentence, but he may not impose a sentence of more than 7 years.

(4) If the sentences are imposed after plea, the starting point may be more than 7 years, but if the sentence after discount is 7 years or more, the full 7 years should not be imposed as this deprives the accused of any benefit for his plea of guilty.

(5) Therefore, in cases which merit a sentence of 7 years or more after discount for plea, a further discount should be given.”

35.  The Court also stated that a “meaningful” discount must be given for a plea of guilty when the sentence is 7 years or more:

“8. … justice requires a further meaningful discount should be given from the maximum of 7 years after plea in those cases which would attract 7 years or more as the proper sentence which the court ought to impose. This is to give the accused some benefit for his plea of guilty.

  9.     … The same applies if the appropriate sentence is so near 7 years that the discount is not meaningful. As to what is meaningful in the particular circumstances, this must be left to the sentencer, but rarely would a reduction of less than 1 year be so considered.”

36.  The Court of Appeal (Stock JA and Lugar-Mawson J) in HKSAR v Wong Wan Shan, unrep., CACC 9 and 10/2002, 4 June 2002, addressed the application of the proviso to s 82(2)(a), in which it held:

“23. Technically, the judge was wrong, to say without more, in his reasons for sentence in DCCC 882 of 2001 that his sentencing jurisdiction was limited to seven years’ imprisonment. The limitation in the proviso to section 82(2)(a) of the District Court Ordinance upon the aggregate terms of imprisonment that a District Court Judge may pass when imposing sentences, which are wholly or partly consecutive, is confined to those situations in which the sentences are imposed by the same judge on the same occasion; see: R v Yuen Shek On [1987] HKLR 736. In R v Chan Fook Hung [1991] 2 HKLR 519, this Court held that even if the sentence in the second case was imposed by the same judge who passed sentence in the first case, the limitation in the proviso did not apply as it was not passed on the same occasion.” (Emphasis added)

37.  See HKSAR v Ahmed Sani Salman, unrep., CACC 334/2017, 8 January 2019.

38.  The Court in Wong Wan Shan cited R v Yuen Shek-on [1987] HKLR 736 as authority for the limitation of the proviso.  The issue in Yuen Shek-on was the proper construction of s 57 of the Magistrates Ordinance, Cap 227, but s 82 was also discussed by reference to the decision in Wong Sai-nang [1980] HKLR 242, which the Court of Appeal in Yuen Shek-on expressly disapproved because it was given per incuriam.  The Court in Yuen Shek-on applied the decision of the House of Lords of In re Hamilton; In re Forrest upon the interpretation of s 108(1) of the Magistrates’ Court Act 1952 of the United Kingdom.  Section 108(1) reads as follows:[10]

“(1) A magistrates’ court imposing imprisonment on any person may order that the term of imprisonment shall commence on the expiration of any other term of imprisonment imposed by that or any other court; but where a magistrates’ court imposes two or more terms of imprisonment to run consecutively the aggregate of such terms shall not, subject to the provisions of this section, exceed six months.”

39.  In re Hamilton, Lord Fraser of Tullybelton, with whom the other judges agreed, construed the subsection as follows:[11]

“The first part of that subsection down to the semicolon contains nothing to suggest that the date on which the ‘other term of imprisonment’ was imposed is material. If it was imposed by ‘that court’ (i.e. by the magistrates’ court itself) that might have been either on the same occasion as the sentence which is to be consecutive to it is imposed, or on an earlier occasion. But if it was imposed by ‘any other court’ it must have been imposed on an earlier occasion. When one comes to the second part of subsection (1), after the semicolon, the provision is that where a magistrates’ court ‘imposes two or more terms of imprisonment to run consecutively’ and in my opinion the natural and plain meaning of those words is to read them as referring to imposing two or more terms of imprisonment on the same occasion. I agree with Ormrod L.J. and Lloyd J. that the subsection, on its natural reading, does not limit the power of the magistrates’ court to imposing sentences of a total amount of six months or 12 months in all circumstances. If it had done so, it would have been inconsistent with the policy given effect to by subsection (4) and while that is not impossible it is unlikely.”

40.  He went on to make the following observation that is also relevant to our consideration of s 82:[12]

“I recognise that the result of construing the subsection in the way that I consider to be correct is to leave room for what may seem to be an anomaly; provided that sentences are imposed on different days there is, in theory, no limit to the aggregate of the terms of imprisonment that a magistrates’ court may impose. But that is only theoretical, because in practice if the aggregate were going to be greatly in excess of six months or 12 months, as the case may be, the magistrates’ court would remit the case to a higher court for sentence. In any event, I regard the construction of subsection (1), which is the only subsection relevant for this purpose, as too plain to be shaken by consequences which may seem to some extent anomalous. …”

41.  Soon after Yuen Shek-on, the Court of Appeal in R v Wong Sau-ming [1989] 2 HKLR 406 had cause to construe the ambit of the proviso under s 82.  The Court held that the seven-year period referred to in s 82 concerned sentences imposed in the District Court on one occasion, and it was permissible for the court to direct a sentence commence at the expiration of a term of imprisonment an accused was already serving even if the total period of imprisonment that was imposed on two occasions amounted to greater than seven years.

42.  Fuad VP, who gave the judgment of the Court in Wong Sau-ming, noted that the observations in Yuen Shek-on upon the effect of s 82 were strictly speaking obiter dictum, but nonetheless agreed with the Court of Appeal in Yuen Shek-on and explained,[13]

“… that that section must be interpreted as if the words ‘on the same occasion’ were interpolated into proviso (a) to sub-s.(2) of the section, viz:

‘82. (1) Where the Court sentences any person to undergo a term of imprisonment for an offence, and such person is already undergoing, or is at the same time sentenced to undergo, imprisonment for another offence, it shall be lawful for the Court to direct that such imprisonment shall commence at the expiration of the term of imprisonment which such person is then undergoing or has been so previously sentenced to undergo as aforesaid.

(2) Notwithstanding the provisions of any enactment in force at the commencement of this Ordinance and notwithstanding that proceedings have not been taken by way of indictment, the Court may impose any penalty and make any order provided by law for or in connexion with any offence of which it has cognizance:

Provided that—

(a) no sentence of imprisonment passed by the Court shall exceed 7 years in respect of one offence and where two or more consecutive terms of imprisonment are imposed by the Court [on the same occasion] under sub-s.(1), the aggregate of the said terms of imprisonment shall not exceed 7 years; and

(b) any term of imprisonment imposed in default of payment of a fine shall not exceed 1 year.’ [interpolation added]”

43.  From the foregoing authority, the question arises as to what is meant by “the same occasion”.  It will not be the same occasion according to Lord Fraser In re Hamilton if the sentences are imposed on different days, and Faud VP in Wong Sau-ming if the accused is undergoing a sentence for another offence.  But what is the difference between different days or different times on the same day?  We will return to this issue later in our discussion as it will require examining the nature and form of the criminal proceedings by which an accused person is brought before the District Court.

44.  In the present case, the prosecution took a deliberate decision that the total sentence of the three cases might exceed the 7-year jurisdictional limit and therefore applied for them to be dealt with at different times.  This was stated by the respondent in its written submission as follows:

“18. All DCCC 346 and 625/2019 (consolidated), DCCC 365/2020 and DCCC 626/2020 were brought up for plea/mention (usually referred to as plea day hearing) in the District Court on 1 September 2020. Anticipating that the aggregate sentence of the three cases might exceed 7 years’ imprisonment, the Prosecution applied for the pleas and sentences of the three cases to be heard before the same judge but at different sittings, i.e. on three different occasions. The defence, on the other hand, applied for all the three cases to be heard before the same judge on the same occasion. The District Court eventually made an order in favour of the Prosecution by fixing the pleas of all the three cases to be heard before the same judge but on three different dates.”

45.  Mr Wong does not take issue with the legal principle stated in Wong Wan Shan, so the question is whether the prosecution in the circumstances of this case was justified in bringing the three cases against the appellant in the District Court by having them dealt with at different times.

46.  The issue the appellant faces in advancing this ground is the principle in Wong Wan Shan and its application, and the two rulings refusing an application for the cases to be dealt with on the same occasion.  There is the additional factor that the appellant by breaching his bail conditions on various occasions caused the cases to accumulate when they could have been dealt with separately.  Moreover, the prosecution fixed the three cases to be dealt with in the District Court, which is quite extraordinary given that the combined effect of the appellant’s criminal conduct in the cases was very serious and warranted the appellant be dealt with in the Court of First Instance.

47.  The proviso under s 82(2)(a) means that the aggregate may not exceed seven years, if the accused is sentenced to consecutive sentences on the same occasion.  However, the proviso does not apply to consecutive sentences on separate occasions.

48.  As recognised by Lord Fraser In re Hamilton on the construction of the section under consideration provided that sentences were imposed on different days there was, in theory, no limit to the aggregate of the terms of imprisonment that may be imposed.  However, he noted that if the aggregate was to exceed the jurisdictional limit the case would be remitted to a higher court for sentence.  The same reasoning applies to s 82.  We would have expected as a matter of good practice and sound policy, that the prosecution, anticipating an aggregated sentence exceeding the 7-year jurisdictional limit, would have transferred the cases to the appropriate court for sentence.[14]

49.  The right to choose the venue of trial is vested in the prosecution.[15] However, the respondent argues that it is within the prosecution’s prerogative to decide whether charges should be joined in one or more indictments so as to best conduct the prosecution case and serve the administration of justice.  Naturally, this statement is subject to the relevant law and rules that define the basis and ambit of prosecution action instituted against a defendant or defendants.  See Re C (A Bankrupt) [2006] 4 HKC 582, at [21] and [22].

50.  By reference to the indictment rules, the respondent makes the point that there is no rule compelling the prosecution to put all the charges in the same indictment as long as they are against the same defendant, nor to have them heard before the same judge and on the same occasion.

51.  It is contended that there were good reasons for the 47 charges laid against the appellant to be grouped into the different cases as they were: DCCC 346 and 625/2019 concerned car purchase frauds and related offence as well as thefts from the employer; DCCC 365/2020 concerned online purchase frauds and other thefts; and DCCC 626/2020 concerned investment frauds.  The respondent submits that the only nexus between these cases was the fact that the appellant committed all of them.  Had the appellant decided to plead not guilty, the defence may have objected to the cases being heard by the same judge, let alone on the same occasion.  The current complaint by the appellant only arose because he chose to plead guilty to all the charges he faced.  The position he took should not dictate or compel the court to hear all the charges together on the same occasion “so as to unjustifiably allow him to benefit from any sentencing limit without proper regard to his overall culpability.”[16]

52.  The problem with this statement is that if there is an issue with the jurisdictional limit of the court for the purpose of sentencing then the case or cases should be transferred to a court with an appropriate jurisdictional limit to address the “overall culpability” of the defendant’s offending, taking into account all relevant matters for the purpose of sentencing.

53.  When determining the nature of a case and fixing a venue for trial, the prosecution should cater for all possible contingencies and take appropriate action if the circumstances of the case change.

54.  The respondent acknowledges that the prosecution chose to have the present cases dealt with in the District Court and the parties agreed that they be heard by the same judge.  It is contended that the only dispute between them was whether the cases should be dealt with on the same or different occasions.

55.  Having been informed the appellant would plead guilty to all charges in the three cases, the prosecution fixed the cases in the District Court in anticipation that the aggregate terms of the sentences might exceed the jurisdictional limit of 7 years’ imprisonment.  The respondent submits that in accordance with Wong Wan Shan the prosecution applied to have the three cases dealt with at different sittings before the same judge. 

56.  The respondent submits that the issue engaged in this appeal is whether the prosecution’s approach of having the three cases dealt with by the same judge but at different sittings to achieve a sentence exceeding 7 years’ imprisonment resulted in any prejudice or unfairness to the appellant.

57.  In order to address this issue, the respondent explained that the appellant’s sentence of 7 years and 3 months’ imprisonment was proportionate, given his overall criminality, which was “well-planned brazen and persistent”, and which was aggravated by his appalling criminal record, committing offences whilst on bail or having breached bail, and his late guilty pleas to most of the charges in DCCC 346/2019 because he had absconded.

58.  The respondent’s submission begs the question why the appellant’s cases were not transferred to the Court of First Instance if they warranted an overall sentence of more than 7 years’ imprisonment. 

59.  In general terms, when a charge or complaint has been transferred to the District Court by a magistrate, the Court has jurisdiction and power over all proceedings in relation to the alleged offence similar to the Court of First Instance subject to any limitations or qualifications under the statutory provisions and rules, such as s 82. The Secretary for Justice is obliged to file, within 14 days from the date of the order of transfer or such other period as the Court may allow, a charge sheet with the Registrar of the Court setting forth the charge or charges preferred against an accused.[17]

60.  The prosecution in this instance, on an order of transfer to the District Court from a magistrate, filed four charge sheets against the appellant.  The charge sheets in respect of two cases were consolidated in the District Court (DCCC 346/2019 and DCCC 625/2019) and this meant there were three cases against the appellant before the Court.

61.  It was open to the prosecution, as a matter of good sentencing practice, to apply for the three cases to be heard by the same judge, which it successfully did.  The prosecution applied to have the three cases dealt with at different sittings to address the proviso to s 82(2)(a).  It would appear on the authority of Wong Wan Shan that this was not necessary, because the Judge was dealing with three separate charge sheets and sentencing the appellant separately on each one although correctly taking into account on each occasion any current previous sentence.  In this sense, the sentence imposed in respect of each charge sheet was a separate occasion from the other and therefore the sentences imposed in respect of the three cases were not on the same occasion.  In respect of each charge sheet the Judge must deliver a verdict and a sentence, the reasons for which must be reduced to writing as required under s 80.  Accordingly, there was no need to have the three cases dealt with at different times. 

62.  In our judgment, when an accused is dealt with by the same judge on separate charge sheets which are dealt with separately from each other it will not be on the same occasion unless they have been consolidated or agreed to be heard together.

63.  The appellant also complains that he was deprived of a meaningful discount for his pleas of guilty.  The starting points and the ultimate sentences imposed in each of the three cases did not exceed the jurisdictional limit and hence the issue did not arise.

Conclusion

64.  It follows from the foregoing reasons that the appeal against sentence is dismissed.

[1] Respondent’s Submission, at [12].

[2] Respondent’s Submission, at [13].

[3] Respondent’s Submission, at [14].

[4] Respondent’s Submission, at [15].

[5] Respondent’s Submission, at [16].

[6] Respondent’s Submission, at [17].

[7] Respondent’s Submission, at [18].

[8] Transcript of the Judge’s ruling: Appeal Bundle (DCCC 346 and 625/2019), 119-120.

[9] HKSAR v Lam See Chung, Stephen [2013] 5 HKLRD 242.

[10] In re Hamilton; In re Forrest [1981] 3 WLR 79, 86A-B.

[11] Ibid., 86B-D

[12] Ibid., 86E-F.

[13] Wong Sau-ming, 408F-J.

[14] See ss 77A and 77B of the District Court Ordinance, Cap 336 which provide for the transfer of proceedings to the Court of First Instance.

[15] Chiang Lily v Secretary for Justice (2010) 13 HKCFAR 208, at [15].

[16] Respondent’s Written Submission, at [23].

[17] Ss 75(1), (2) and (3), 77, 79 and 80 of the District Court Ordinance, Cap 336.