LEE CHEUK-KAN v. THE QUEEN

CACC000791/1977

 

IN THE COURT OF APPEAL
on appeal from the District Court
	1977 No. 791
	(Criminal)

-----------------

 

BETWEEN
	LEE CHEUK-KAN	Appellant
	and
	THE QUEEN	Respondent

-----------------

Coram: Pickering, J.A., Leonard & Cons, JJ.

Date of Judgment: 5th October, 1977.

 

-----------------

JUDGMENT

-----------------

 

Pickering, J.A.:

1. The appellant pleaded guilty to seven offences. What the offences were is immaterial to the grounds of his present appeal against sentence. He complains that whereas the learned judge said that his sentences were intended to total three and a half years, the prison authorities were of the view that the sentences totalled four years and nine months.

2. We confess to no surprise that the prison authorities should be under that impression for the manner in which the learned judge set out the sentences was highly ambiguous and it is possible to construe their total as either three and a half years or four years and nine months or five years and five months. The sentences were set out in the record in this fashion:

	1st Charge:	Nine months' simple imprisonment.
	2nd Charge:	Two years' simple imprisonment concurrent.
	3rd Charge:	Two years' simple imprisonment concurrent.
	4th Charge:	Two years' and eight months' simple imprisonment consecutive.
	5th Charge:	One month's simple imprisonment consecutive.
	6th Charge:	Two years' simple imprisonment concurrent.
	7th Charge:	Two years' and eight months' simple imprisonment concurrent.

3. It will be observed that the sentence of two years' imprisonment upon the 2nd Charge was expressed to be concurrent; but at that stage the only other sentence imposed was that of nine months upon the 1st Charge so that the two years were being expressed to be concurrent with nine months. This, we suspect, was the beginning of the confusion. If one works from top to bottom down the schedule of sentences there results a total of four years and nine months. If conversely, one works from the bottom of the schedule upwards the sentences total five years and five months for the one month's imprisonment on the 5th Charge is expressed to be consecutive but it has to be consecutive to something and if one is working from the bottom of the schedule it can only be consecutive to the two years and eight months' imprisonment imposed upon the 7th Charge.

4. The double ambiguity arises from the fact that the learned judge in imposing concurrent sentences neglected to say with what these sentences were to be concurrent and likewise in handing down consecutive sentences failed to make it clear with what they were consecutive. It is essential in imposing sentences some of which are consecutive and some of which are concurrent that it be clearly stated with what those sentences are consecutive or concurrent. The failure to do that in this case meant that had the appellant not in fact appealed he would have served 15 months longer in prison then was the intention of the trial judge. The appellant tells us that the judge intimated in court that the total sentence was three and a half years' imprisonment but that does not appear on the record and the Certificate of Sentences delivered by the Court to the Commissioner of Prisons naturally contains no more than the schedule which we have reproduced above - hence the Prisons Department's understanding of the sentences as totalling four years and nine months. In fact the only method of calculation which would arrive at the learned judge's total of three and a half years is to total the sentences on the 1st, 4th and 5th Charges - a method not immediately apparent as being the most logical.

5. In so far it is necessary to do so we allow the appeal, set aside the alleged total of four years and nine months' imprisonment and, without interfering with the individual sentences, correct the total to the judge's figure of three and a half years.

 

 Representation:

Appellant in person.

E.R. Astin for Crown/respondent.