R. v. FUNG YU MING

IN THE COURT OF APPEAL

1996, No 124
(Criminal)

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J U D G M E N T

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Bokhary, J.A.:

1. This case comes to us from the District Court.

2. The applicant is a man in his late 30's. He faced four charges. They were: uttering a forged die under the 1st charge; possession of dangerous drugs under the 2nd charge; possession of forged dies under the 3rd charge; and assault occasioning actual bodily harm under the 4th charge.

3. On January 24 this year: he appeared before Her Honour Beeson; pleaded guilty to all four charges; and was sentenced to a total of five years and eight months' imprisonment.

4. That total was arrived at this way. Terms of two years and five months' imprisonment, eight months' imprisonment, four years' imprisonment and seven months' imprisonment were imposed under the 1st, 2nd, 3rd and 4th charges respectively. The terms under the 2nd, 3rd and 4th charges were made wholly consecutive to each other and consecutive as to five months to the term under the 1st charge.

5. The applicant now seeks leave to appeal against sentence. One perfected ground of appeal against sentence has been filed. It reads:

"In all the circumstances of this case, the total sentence of five years and eight months' imprisonment was and is both wrong in principle and manifestly excessive."

6. It was as long ago as October 1989 that these offences were committed.

7. On the 6th of that month, the applicant used a forged credit card to buy two gold coins for $4,157.50 from the Chinese Arts and Craft Store in the China Resources Building in Wanchai. That formed the subject-matter of the 1st charge.

8. Two days later, on the 8th, the applicant was back in that store again. He came under suspicion, realised it and left the store. The police, who were summoned to the store, went off with a member of the store's staff to look for the applicant. They found him and caught him after a chase.

9. Taken to the police station, the applicant was searched there.

10. A packet of dangerous drugs, being 1.05 grammes of a mixture containing 0.98 grammes of salts of esters of morphine, were found in his wallet. Those drugs form the subject-matter of the 2nd charge.

11. Nine forged credit cards, including the one which he had used at the store two days before, were found in his bag. They form the subject-matter of the 3rd charge.

12. When the police were interviewing him on the same day, the 8th, he assaulted two officers, a Detective Station Sergeant and a Detective Police Constable, causing them actual bodily harm. Hence the 4th charge.

13. The reason why the case came on before Judge Beeson six years' after the applicant's arrest is that he had absconded while on bail and had remained at large until his re-arrest this year.

14. One thing that should be mentioned for the sake of accuracy is that the judge mistakenly thought that these offences occurred in October 1990. In fact, as we have seen, they occurred one year earlier in October 1989.

15. In dealing with the applicant's record and the reason for which his counsel asked for a lenient sentence, the judge said:

" You have a criminal record which includes one conviction similar to Charge 2 and one related conviction in 1984. The similar conviction is only recently entered but the offence itself dates back to 1990, the time of your absconding. I note there are no convictions similar to Charges 1 and 3 and that you appear to have avoided further convictions since 1990.

Your counsel seeks a lenient sentence on the basis that this is an old offence and that you have established yourself as a business and family man in the interim."

16. The conviction which the judge described as similar was one of possession of dangerous drugs. And what she described as related were in fact two convictions of possession of a dangerous drugs for the purpose of unlawful trafficking. For those two offences, the applicant received concurrent terms of five years and three years duration on July 10, 1984.

17. The point offered in mitigation that the applicant had established himself as a family man and a businessman did not find favour with the judge. She said:

"I note too that you are not now before the Court as a result of remorse leading to your surrender. It is difficult to see how you are deserving of treatment as an exceptional case. The only exceptional thing about this case is the length of time you have managed to remain a fugitive."

18. The judge's reference to surrender is correct to this extent. If the applicant had surrendered, his claim to leniency would have been that much greater.

19. On the other hand, it seems to us going too far to say that the only exceptional thing about the case is the length of time the applicant had managed to remain a fugitive. Another exceptional thing about it is that in the interim he had managed to establish himself in a fairly respectable style of life. We say "fairly" because he unfortunately remains a drug addict. Nevertheless, he has become a family man and a businessman and he has stayed out of the courts for quite a long time.

20. It is not the business of this Court to give people any incentive to abscond so that they may hope to be dealt with more leniently if by the time they surrender or are caught, they have established a respectable life-style.

21. At the same time, it is not the business of this Court to tell people that if they are fugitives, it makes no difference how they behave while they are fugitives.

22. Sentencing is notoriously difficult. There is always a balancing exercise to be performed. And there is always a line to be walked making very sure that one does not stray from that line whether to one side or to the other.

23. It seems to us that there was here some mitigation which the judge set her face against entirely.

24. That mitigation should have earned this applicant some credit. What we propose to do is to treat this application as the hearing of the appeal and allow the appeal against sentence to the extent of reducing the total from five years and eight months' imprisonment to five years' imprisonment.

25. The mechanics by which that is achieved is of secondary importance. In this particular case, the method we choose is this.

26. We impose a sentence of two and a half years' imprisonment on the 1st charge; leave the term on the 2nd charge undisturbed; impose a sentence of two and a half years' imprisonment on the 3rd charge; and leave the term on the 4th charge undisturbed. The two terms of two and a half years each will be made wholly consecutive. The other terms will remain wholly concurrent.

27. The net result is five years' imprisonment.