R. v. MOK YUI HING

IN THE COURT OF APPEAL

1993, No. 676;
1995, No. 224 and 734
(Criminal)

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J U D G M E N T

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Mortimer, J.A. (giving the judgment of the Court) :

1. We have given leave to appeal against a number of sentences out of time. The circumstances under which these cases come before the court are that on four occasions this applicant received sentences of imprisonment after trials. It appears that on some of those occasions the judge concerned was not informed of the total sentences to which the applicant was then subject. The result of the sentences, to which we will refer in a moment, appears to us to be that the applicant is serving a total of about 13 years. It falls to this Court to consider whether that sentence is an appropriate sentence having regard to the totality of offences which have been committed by the applicant.

The offences on 11 March 1992 and 29 October 1992

2. We are content to take the background from a very helpful summary which has been provided by Mr Saw for the Crown.

3. On 28 November 1984 the applicant was sentenced to 11 years imprisonment on two counts of rape and four counts of robbery. He was released from those terms early in 1992. He is now about 30 years of age.

4. Shortly after his release from those sentences of 11 years, he was committed further serious offences. A series of offences took place on 11 March 1992. The applicant together with another man, one of whom was armed with a knife, assaulted and robbed a Mr Lee of $3,000, his wrist watch and a portable telephone.

5. About 11/2 hours later Mr Lo was on his way home to police married quarters in Kowloon when he was accosted by the applicant and another man. They asked him for directions but almost immediately after, the applicant grabbed his shirt, produced a knife, threatening to stab him. Fortunately for Mr Lo, there were two police officers nearby and they intervened. The applicant fled but was apprehended. He then tried to bribe the arresting officer by offering him a gold watch in exchange for his freedom.

6. Consequently, the applicant was charged with, assault with intent to rob, possession of an offensive weapon, offering an advantage and robbery of Mr Lee.

7. For some reason not immediately apparent to this Court, the applicant was granted bail.

8. The hearing for those offences was fixed for 5 January 1993. However, during the time that he was on bail, he committed other offences.

9. In the early hours of 29 October 1992 the police stopped a Mercedes Benz motorcar. The applicant was one of three occupants. Inquiries were made and identity cards were asked for whereupon the occupants of the car ran away. The applicant was apprehended after a struggle. A search of the motorcar revealed that there were two imitation pistols, three mouth masks; three Balaclavas; some pairs of gloves; three large beef knives; some rolls of tape; some screw drivers and the original registration plates of the car - the car bore false plates. Consequently, the applicant was charged with conspiracy to commit robbery and possession of an imitation firearm with intent to commit an arrestable offence. Even more astonishingly the applicant was again given bail and the hearing for those offences was fixed for 25 October 1993.

The first trial

10. In the course of the first trial for the earlier offences committed on 11 March 1992, the applicant absconded before the trial was complete. The result was that the trial continued in his absence for three of the offences, but so far as the robbery of Mr Lee was concerned, that was adjourned for a later trial on a new indictment.

The offences on 2 March 1993

11. During the time that he was on the run, the applicant was arrested again. On 2 March 1993, a party of police officers entered a karaoke establishment. They were checking identification cards among those who were present. The applicant was there. He was seen going into the toilet and thereby aroused their suspicions. When he was stopped by a uniformed sergeant and asked for his identification card, suddenly the applicant threw himself at the sergeant. There was a violent struggle in which the applicant tried to wrest the sergeant's service revolver from him. The struggle continued into the street outside. Other police officers came to assist. In the course of the fight, one of those officers was struck on the head with a "beat radio" which the applicant had grabbed. The applicant attempted to seize that officer's service revolver as well. In due course he was subdued, arrested and charged with two offences of attempted robbery - the service revolvers; assault of a police officer in the execution of his duty - that was the striking of one of them with the "beat radio"; and obstructing a police officer in the course of his duty.

12. Those charges were also preferred against him and set down for trial.

13. The trials which took place can be summarised as follows.

The first trial (continued)

14. The first trial took place before His Honour Judge Longley in the District Court in respect of four offences, but as we have said, the trial was completed in relation to three - assault with intent to rob; possession of an offensive weapon and offering an advantage. He was convicted. On 27 January, concurrent terms of imprisonment were imposed, amounting to 4½ years in total.

The second trial

15. The second trial which started on 29 October 1992 was in the High Court before Deputy Judge Gould and a jury. That trial was in respect of conspiracy to commit robbery and possession of the imitation firearm. The trial was completed on 5 November. He was convicted and a total of 8 years of imprisonment was passed. Unfortunately, because the police documents were not up to date, Deputy Judge Gould was not informed and had no idea that the applicant was at that time serving the earlier sentences of imprisonment. So the result was that the 8 years imprisonment passed by Deputy Judge Gould commenced on 5 November 1993.

The third trial

16. The third trial was in respect of the robbery of Mr Lee, which was adjourned from His Honour Judge Longley in the District Court. The trial was completed on 4 December. After trial, Judge Livesey sentenced the applicant to 3 years imprisonment consecutive to those being served. She was wrongly under the impression that the earlier sentences of 4½ years and 8 years were consecutive one to another.

The fourth trial

17. Finally, on 2 March 1993, the applicant appeared before His Honour Judge Muttrie in the District Court for the offences at the karaoke establishment. Concurrent imprisonment terms - the longest of which was 3 years - were imposed. But those sentences were to commence after 10 years had been served of the earlier sentences.

The application

18. We have been invited to consider all these offences because of the uncertainty which prevailed during a number of the earlier trials as to the length of sentence which the applicant was actually serving at the time when the judges came to consider the question of sentence.

19. It is, of course, trite law that when a judge comes to consider sentences for particular offences in respect of which an accused person has been convicted in front of him, he must consider the totality of sentences which have been passed and which he is already serving. It is uncertain in a number of these cases whether that was done, or fully done. However, so far as this Court is concerned, our task is to consider the totality of imprisonment passed upon the applicant and to decide whether the total of 13 years is wrong in principle or manifestly excessive.

The result

20. We are firmly of the view that a sentence in the region of 13 years for these offences is not manifestly excessive. Indeed, having regard to the whole history of this matter, it may be that the applicant was fortunate to have received the sentences in the way that he did. However, it is important that both the applicant, and those have to administer the sentences of imprisonment, should know exactly what sentences have been passed. We propose in those circumstances to allow these appeals to the extent that we will specify sentences which are certain.

21. In order to achieve the 13 years sentence from the date of the first trial upon the first sentence was passed - that is the 27 January 1993 - we make the following orders:

(i) That the sentence of 4½ years passed by His Honour Judge Longley on 27 January 1993 shall stand;

(ii) That the sentence passed by Deputy Judge Gould on 5 November 1993 of 8 years shall be consecutive to that sentence, making 12½ years in all;

(iii) That the sentence of 3 years passed on 4 December 1993 by Judge Livesey, shall be concurrent to the earlier sentences as to 2½ years but 6 months will be consecutive, making 13 years in all; and

(iv) That the sentence passed on 17 November 1994 by His Honour Judge Muttrie of concurrent terms, totalling 3 years shall be concurrent with all the earlier sentences passed.

22. To that extent, we allow this application for leave to appeal. We treat the application as the appeal and make the above orders.