HKSAR v. LEE MING YIN

bjbj artmann JA and Lunn J in Court Date of Hearing: 26 January 2011 Date of Judgment: 26 January 2011

J U D G M E N T Hon Hartmann JA (giving the judgment of the Court): On 8 September 2010, in the District Court before Judge Douglas Yau, the applicant was convicted on his own plea of attempted robbery, contrary to section 10 of the Theft Ordinance, Cap. 210 and section 159G of the Crimes Ordinance, Cap.

200. He was sentenced to a term of five years imprisonment. He now seeks leave to appeal that sentence. Mr Kwan, who appears for the applicant, does not complain that the sentence, taken in isolation, is either wrong in principle or manifestly excessive. However, at the time of the applicant s sentencing, he was already serving a sentence of 10 years and eight months imprisonment for trafficking in dangerous drugs, that sentence having been imposed some 11 months earlier on 19 October 2009. It is Mr Kwan s submission that the sentencing judge fell into error when he declined to order that any part of the sentence of five years imprisonment for attempted robbery should be served concurrently with the sentence earlier imposed for trafficking in dangerous drugs, ordering that the two sentences be served wholly consecutively. The principle is long settled that a sentencing judge, when dealing with an offender who has been sentenced to imprisonment by another court for another offence, must have regard to the totality of all the terms of imprisonment to which the offender will become subject: see, for example, R Ng Chun Keung [1993] 2 HKC 171 at 173. In R Tong Hoi Fung [1988] 1 HKLR 610, this Court said that, in determining an appropriate sentence in light of the totality principle, the matter should be approached as if the two cases were being heard together. In the present case,

as we have said, the sentencing judge refused to order any part of the sentence for the attempted robbery to be served concurrently with the earlier sentence for trafficking in dangerous drugs. In the result, the total sentence that the applicant now has to serve is one of 15 years and eight months imprisonment. The question to be considered is whether, having regard to all the circumstances, the total sentence of 15 years and eight months imprisonment is appropriate or whether it is so disproportionate to the criminality of the two offences that it amounts to a sentence that is manifestly excessive: in this regard, see HKSAR Leung Chun Man (unreported) CACC 156/2003. In answering this question, it is necessary to have regard to the nature of the two offences committed by the applicant and, if at all, their relationship to each other. On a time sequence, the offence of attempted robbery was committed first. It took place on 8 December 2008. The applicant and another man broke into commercial premises, a depot dealing in used tyres and attempted to rob the persons they found there. At the time there were three employees in the depot. Each of them had their hands tied behind their backs with adhesive tape and were ordered to squat. One of the three was threatened with an iron bar. A short while later, a vehicle drove into the depot. There were two men inside, a customer of the

depot and his driver. The customer was grabbed by the neck and threatened with a short cutting blade. The driver was threatened with an iron wrench. The driver, however, managed to escape, climbing back into his vehicle and driving away. When he did so, the applicant and his accomplice fled the scene. Subsequent police investigations revealed the applicant s fingerprints on the adhesive tape used to bind the victims of the attempted robbery. As for the offence of trafficking in dangerous drugs, this occurred some two months after the attempted robbery when, on 12 February 2009, the applicant was stopped by police and found to be in possession of some 2,200 grammes of ketamine. The applicant pleaded guilty and was sentenced in accordance with established guidelines. Again, taken in isolation, no complaint is made that this sentence is wrong in principle or manifestly excessive. It is to be noted that, although the applicant has a lengthy criminal record, beginning in 1998, most of those convictions were in respect of possession or use of dangerous drugs and apparently relatively minor offences of dishonesty. He had been made the subject of Drug Addiction Treatment Centre orders on three occasions. Prior to being convicted and sentenced in respect of the offence of unlawfully trafficking in dangerous drugs in October 2009, for which he was sentenced to 10 years and eight

months imprisonment, he has not been the subject at any one time of orders that he serve consecutive sentences of more than 18 months imprisonment. Returning to the two offences, we note that there was nothing to link them other than the fact that the applicant was prepared to lend himself, when the opportunity arose, to different types of criminal conduct. The two offences were independent in nature and separated in time by a period of about two months. Both were serious offences. The attempted robbery was committed with an accomplice, it required an invasion of commercial premises and involved the perpetration of violence on a number of victims. The sentence that was imposed was in accordance with long-established guidelines. The second offence, that of trafficking in dangerous drugs, occurred some two months later in a different part of Hong Kong; it involved a large quantity of the drug ketamine. Again, the sentence imposed was in accordance with established guidelines. The issue is whether, stepping back and taking a global view of the total sentence in light of the criminal conduct that led to it, the sentence is manifestly excessive. With respect to the judge, in our view the imposition of a total sentence of 15 years and eight months imprisonment, notwithstanding the serious nature of each of the individual offences, was manifestly excessive. The demands of justice can

be met by ordering part only of the sentence of five years to be served consecutively to the sentence to which the applicant was already subject. In our view, that objective can be achieved by ordering three years of that sentence to be served consecutively to the other sentence, the remaining two to be served concurrently. Conclusion In the result, we treat the hearing of the application for leave to appeal against sentence as the hearing of the appeal and quash the order that the sentence of five years imprisonment be served consecutively to the sentence of 10 years and eight months imprisonment to which the applicant was subject. In its place, we order that three years of the sentence of five years imprisonment be served consecutively to the other sentence. Accordingly, the applicant is subject to a total sentence of imprisonment of 13 years and eight months. (Peter Cheung) Justice of Appeal (M.J. Hartmann) Justice of Appeal (Michael Lunn) Judge of the Court of First Instance Mr MAN Tak Ho Jonathan, SPP, of the Department of Justice for the Respondent Mr KWAN Tong Lee, instructed by Messrs Chan La 1udk gd @ gd @ h!&1 h!&1 h!&1 gdid gdid gd @ rn^n

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