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Hksar v Wong Tak Po

Judgment Cited authorities 1 Cited in Precedent Map Related
Vincent
Judgment Date22 November 2002
Year2002
Judgement NumberHCMA914/2002
Subject MatterMagistracy Appeal
CourtHigh Court (Hong Kong)
HCMA000914/2002 HKSAR v. WONG TAK PO

HCMA000914/2002

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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BETWEEN
HKSAR Respondent
AND
WONG TAK PO (AD1) Appellant

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Coram: Deputy High Court Judge Line in Court

Date of Hearing: 22 November 2002

Date of Judgment: 22 November 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...

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