NG CHUN KEUNG v. R.

1993, No. 121
(Criminal)

IN THE SUPREME COURT OF HONG KONG

APPELLATE JURISDICTION

(On appeal from Case No. HC 154 of 1992)

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J U D G M E N T

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Barnett J,

1. This is the judgment of the Court.

2. The Applicant pleaded guilty to one count of robbery on the 4th March this year. Deputy Judge Wong sentenced him to 10 years' imprisonment, a sentence about which no complaint is in itself made.

3. The robbery offence was committed on the 26th of January 1991. It was at the Artland Watch Company in Ice House Street, Central. Leaving one man as a lookout, the Applicant and two other men entered the shop. Each was armed with a pistol-like object. The staff of the shop were frightened and they unlocked showcases in the shop. 103 watches worth some $3.8 million were taken. The robbery itself was recorded by a video- camera.

4. About two months later, on the 2nd April, the Applicant was one of three men stopped by two police officers. The police officers suspected the men of being illegal immigrants. While the police were carrying out their usual checks, the Applicant ran off. One police officer chased and caught the Applicant. The two men struggled and fell to the ground. When the other police officer came up, the Applicant produced a pistol. One shot was fired, apparently accidentally. Fortunately no harm was done. The Applicant was overpowered. From him, three loaded magazines were recovered by the police. Those magazines fitted the pistol which he had produced. We observe that was an unusually large quantity of ammunition. The Applicant later admitted that he bought the pistol and the ammunition in China.

5. Following that incident, the Applicant was charged with and pleaded guilty to two offences. First, possession of firearms. Second, using a firearm with intent to resist lawful arrest. On the 17th of June 1992, the Applicant was sentenced to 9 years' and 10 years' imprisonment respectively. The sentencing judge ordered the sentence of 10 years to overlap the sentence of 9 years to give an overall sentence of imprisonment of 14 years.

6. On appeal, the sentence of 9 years in relation to the possession of firearms was set aside. A sentence of 8 years was substituted. That division of this court directed that the overall sentence should be one of 13 years' imprisonment.

7. Ultimately Deputy Judge Wong, as we have said, was called upon to sentence the Applicant in relation to the earlier robbery. He was asked by Counsel then representing the Applicant to have regard to the overall position and not impose a sentence which would imprison the Applicant for too long a period.

8. In passing sentence, the Judge said this:

"I agree with your Counsel that the starting point for this sort of offence is 15 years. I give you a discount of 5 years for pleading guilty and impose a sentence of 10 years' imprisonment. I have considered the sentence you are now serving. In my judgment, had this offence been tried with the offences you were convicted of on 19th January 1993, the sentence would have been one of about 23 years. For this reason, I sentence you to 10 years' imprisonment, and the sentence to run consecutive to the sentence you are now serving."

9. The Applicant, therefore, now faces some 23 years' imprisonment. It is in relation to that totality that the Applicant now seeks leave to appeal against his sentence.

10. It is a well-known sentencing requirement that a sentencer dealing with an offender who has recently been sentenced to imprisonment by another Court for other offences must have regard to the totality of all the terms of imprisonment to which the offender will become subject. The sentencer must adjust the aggregate accordingly. Authority for that proposition, if it be required, is R. v. Millen (1980) 2 Cr. App. Rep. 357.

11. The overall sentence of 13 years imposed by another division of this Court in relation to the firearm offences is, of course, a correct sentence and one which must be observed both by us and the sentencing Judge. The Judge correctly and indeed at the invitation of counsel took 15 years' imprisonment as the starting point in relation to the robbery offence. He then gave a discount of one-third which, while being perhaps generous, was nonetheless correct.

12. However, ordering the sentence of 10 years' imprisonment to run consecutively to the existing sentence of 13 years, giving 23 years, was manifestly excessive. We say that in the light of the totality principle to which we have already referred and in the light of authorities which were laid before us this morning by Mr. Oderberg. Those authorities are examples of sentences upheld or otherwise given by other divisions of this Court in relation to combined robbery and firearm offences:

R v. Lo Kwok-hung C.A. 472/1991.

R v. Chan Ne-pau C.A. 107/1992.

R v. Shum Chung-leung C.A. 504/1990.

R v. Tam Sun-lam C.A. 261/1990.

R v. Tsang Kam-hing C.A. 163/1990

13. In all the circumstances, we think that the sentencing Judge should have given a further discount of 5 years on the sentence of 23 years. We consider a sentence of 18 years' imprisonment to have been the correct sentence. Accordingly we allow the application for leave to appeal against sentence, we treat the hearing of the application as the appeal itself, allow the appeal and direct that the sentence of 10 years' imprisonment imposed by Deputy Judge Wong should overlap the existing sentence of 13 years' imprisonment so as to produce an overall sentence of 18 years' imprisonment.