HKSAR v. WONG TAK PO

HCMA914/2002

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO.914 OF 2002

(ON APPEAL FROM TMCC 547 OF 2002)

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J U D G M E N T

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1. I am going to allow your appeal to the extent that you will still have a 15 months' sentence of imprisonment for unlawfully remaining in Hong Kong, but instead of that being wholly consecutive to your present sentence, I shall order that only eight months of it be consecutive and seven months of it will be concurrent.

2. This matter comes about because the appellant is an illegal immigrant from China who committed two robberies in Hong Kong. He pleaded guilty to those two robberies in the Magistrates' Court and was committed to the High Court for sentence.

3. He appeared before Bokhary J and she took a starting point of seven years for each of those robberies. She gave a discount in excess of one-third for his cooperation and the mitigation advanced, emphasizing the early plea of guilty. Accordingly for the first robbery, she passed a sentence of four and a half years. She then, taking into account totality, decided to pass a further two years on the second count, making a total of six and a half years' imprisonment. She said the proper sentence, if it had been by itself, for the second robbery would have been four and a half years on a plea of guilty. The application of the totality principle thus saved him two and a half years.

4. The appellant had also been charged with the offence of unlawful remaining. That is a purely summary offence. After being sentenced for the robbery he was brought up on the unlawful remaining charge at Tuen Mun Magistracy, and there, the Magistrate inevitably imposed a sentence of 15 months' imprisonment. The only live question before the Magistrate was whether that should be wholly consecutive, overlapped or concurrent to the six and a half years.

5. The Magistrate decided to make the 15 months wholly consecutive, and he, as he set out in his Statement of Findings, adopted the approach set out by the Court of Appeal in a case called HKSAR v. Tong Fuk Sing [1999] 3 HKC 332. That was a case where an illegal immigrant pleaded guilty to burglary and the Court of Appeal said he should have two years for the burglary and the 15 months wholly consecutive to it for unlawful remaining. The Court of Appeal passed the remark that it had repeatedly said it was proper for such a sentence to be made consecutive.

6. Ms Lo who appears for the respondent in this appeal puts that case before me and also another case called HKSAR v. Chan Po, CACC No. 290 of 1999. Obviously in those two cases, and Chan Po was very similar on the facts to Tong Fuk Sing, the Court of Appeal had not abandoned or forgotten the totality principle, they merely decided that the total of three years and three months, two years of which were for burglary and one year and three months for the unlawful remaining, did not produce too great a total, therefore, it was quite proper to make the sentence wholly consecutive.

7. Those cases are not authority for a principle that in every single case the 15 months must always be wholly consecutive and to illustrate that one only has to imagine the situation where an illegal immigrant, say, chose to traffick in a large amount of drugs and received one of the sentences that are passed in these courts that starts at 20 to 25 years. In those circumstances, my judgment is that most courts would be very slow to add a further one year and three months to such a big sentence because the totality would be too big. At the other end of the scale when an illegal immigrant comes here to shoplift or commit offences of petty theft it is inevitable that the short sentence for such crime will be wholly consecutive to the 15 months for the unlawful remaining. That is because the total is right and one can see if one moves up the scale, as illustrated by the two cases I have referred to, when one is around the three years or three years and three months mark, the totality is still alright.

8. In my judgment, once one gets to the sort of sentence that the appellant has in this case of six and a half years, you are somewhere between the two extremes and one can reasonably consider overlapping the sentences. That is what I have done.

9. In making that order, I have absolutely no criticism of the sentence the Magistrate passed. As Ms Lo points out, it was neither wrong in principle nor manifestly excessive. However the test in this court, unlike the Court of Appeal, is not based on that criteria. On appeal from a decision taken in a summary court, an appellant is entitled to ask the judge to look at the facts afresh and impose the sentence that the judge would have imposed on the admitted facts.

10. So undertaking that task, I bear these factors in mind : that the appellant pleaded guilty to everything and he did so to the robberies in the Magistrates' Court; that he is entitled to say to me please apply the totality principle; he is entitled to say : "Look what the Judge did who sentenced me for the robberies, I got a two and a half years' reduction by the application of that principle, and if I had been sentenced for everything at once I would have got some similar sort of reduction of my 15 months." Bearing in mind that mitigation, my view of sentence is not radically different from the Magistrate but is slightly different and the difference is that, in effect, I have made nearly half of it concurrent and nearly half of it consecutive. This court, hearing appeals, is allowed to tinker and I hope the Magistrate will forgive me for tinkering.

11. Before leaving the case may I just say this, that it seems unfortunate that this common factual situation of illegal immigrants having to be sentenced by two separate tribunals, is an unfortunate one. It seems to me that we have let the rules become our master and not our servant. Even though the purely summary offence of remaining unlawfully cannot appear on an indictment, it could appear on another offence form.

12. However there are cases both in England and in Hong Kong which enunciate a principle that if a court has no jurisdiction to try an offence it ought not take that offence into account in passing sentence for an offence which it does have power to try. The English case is the R. v. Simons [1953] 2 All ER 599, [1953] 1 WLR 1014, 37 Cr App Rep 120 and the Hong Kong case is R. v. Law Kwok Wah, CACC No. 592 of 1981. The practice of taking offences into consideration in the High Court is one based on practice and the common law. It has no statutory basis. That is why the word "ought" is used in the phrase "ought not to take a summary offence into consideration" rather than saying "cannot".

13. The principle that lies behind those two cases is obviously a sensible one because it would normally occur in the context of the court with less jurisdiction being prohibited from taking a more serious offence into account which is outside its jurisdiction. In 99% of cases, the application of the principle will produce the right result. There is an exception to every rule and I can see no vice which would flow from the High Court being able to sentence an illegal immigrant who is also a robber at one go for everything he has done using another offence form notwithstanding the lack of jurisdiction to try a totally summary offence.

14. Since it is only practice that is stopping that, and since it is not based on any statutory prohibition, I would have thought the common law was flexible enough to allow the prosecution here to take that course if they should so wish and it is one I urge them at least to consider.

15. So, Mr Wong, I am sorry you have to listen to all that because it was really for Counsel's ears and not yours. Your sentence is shortened in the way I indicated.