HKSAR v. LE VAN THO

HKSAR v. LE VAN THO

The court held the magistrate was entitled to rely on the identified aggravating factors and that the starting point of nine months for charges 2 and 3 was not excessive, but the magistrate had double counted the on-bail aggravating factor by both increasing individual sentences and ordering them to run wholly consecutively; to avoid double counting and to respect the totality principle the sentence on the 1st charge was reduced to five months ten days and concurrency adjusted so the aggregate term became ten months imprisonment.

Citation
HKSAR v. LE VAN THO
Parties
Respondent: HKSAR; Appellant: LE VAN THO
Court
Court of First Instance
Jurisdiction
Hong Kong
Judgment Date
17 December 2002
Case Number
HCMA947/2002
Procedural Posture
Magistracy Appeal (criminal) Appeal Against Sentence / Judgment on Appeal
Outcome
Appeal allowed in part; sentences varied to give effect to totality and to avoid double counting
Legal Topics
Dutiable Commodities, Possession and Dealing in Contraband Cigarettes, Bail and Sentencing, Aggravating Factors, Totality Principle
Source Language
EN
Criminal Law Customs and Excise Sentencing Dutiable Commodities Possession and Dealing in Contraband Cigarettes Bail and Sentencing Aggravating Factors Totality Principle

Case Brief

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Parties

HKSAR

Respondent

LE VAN THO

Appellant

Procedural Posture

Magistracy Appeal (criminal) Appeal Against Sentence / Judgment on Appeal

Legal Issues

  1. 1 Whether individual sentences for dealing/possession of dutiable cigarettes were excessive
  2. 2 Whether aggravating factors (prevalence of offence, persistent offending, commission while on bail) justified higher starting points
  3. 3 Whether the magistrate double counted the on-bail aggravating factor when imposing consecutive sentences

Ratio Decidendi

The court held the magistrate was entitled to rely on the identified aggravating factors and that the starting point of nine months for charges 2 and 3 was not excessive, but the magistrate had double counted the on-bail aggravating factor by both increasing individual sentences and ordering them to run wholly consecutively; to avoid double counting and to respect the totality principle the sentence on the 1st charge was reduced to five months ten days and concurrency adjusted so the aggregate term became ten months imprisonment.

Court Disposition

Appeal allowed in part; sentences varied to give effect to totality and to avoid double counting

Orders

  • Sentence on 1st charged offence set aside and replaced with five months ten days imprisonment
  • All sentences to be served concurrently except that four months of the sentence imposed in respect of the 2nd charged offence shall be served consecutively to the sentences imposed in respect of the other offences