LAW TUNG-SHING v. THE QUEEN

CACC000658/1979

          Sentence - suspended sentences previously imposed for subsequent offences - no application to take present offences into consideration - suspended sentences activated and concurrent sentences of imprisonment imposed - wrong to impose escalating series of sentences for similar offences - activated sentence should be consecutive.

  

IN THE COURT OF APPEAL	1979 No. 658
	(Criminal)

BETWEEN
	LAW Tung-shing	Appellant
	AND
	THE QUEEN	Respondent

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Coram: Roberts, C.J., Huggins, J.A. and Leonard, J.

Date of Judgment: 31 August 1979

 

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JUDGMENT

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Huggins, J.A.:

1. This case has involved us in considering also a previous case in 1978, in which this Appellant was sentenced to two and a half years concurrent on three charges of robbery and six months and twelve months consecutive in respect of some offences for which he had been given suspended sentences in 1977, making a total of four years' imprisonment passed on 17th October 1978. Some fortnight after he had been sentenced for those offences, the police made enquiries of him regarding further offences. He thereupon made a statement, as a result of which the present four charges of robbery were filed against him.

2. The police had information which led them to suspect the Appellant of the first of these further four robberies in that they had traced some property to him. They had no information whatever about the subsequent three robberies which the Appellant then admitted: no report of them had been made and the victim could not be located. However, the Appellant admitted that he had committed these further robberies. The learned judge in the present case proceeded to pass sentence as follows. For the offence of which the police had information, the Appellant was given two years' imprisonment. For the other three robberies, he was given respectively three years' imprisonment, four and a half years' imprisonment and five and a half years' imprisonment. Those sentences were concurrent with each other and also were to be concurrent with the sentences previously imposed in 1978. It has been suggested that the learned judge may have been under the impression that by making the present sentences concurrent with those passed in 1978 he thought that the sentences would run from 1978. That, of course, would not have been correct, as a sentence cannot be back-dated and it is not certain that that was his intention.

3. Counsel for the Appellant has urged that the learned judge was wrong to impose an escalating series of sentences in respect of the present offences and we are inclined to agree that this was not the proper way to approach the matter.

4. We have approached the case in this way. We have asked ourselves what would have been the proper sentence to impose had all these offences been considered in 1978. We will not be as lenient perhaps as the judge could have been then, because the Appellant did not in fact ask for the present offences to be taken into consideration, as he should have done if he wished to start with a clean sheet. We are inclined to think that it would have been fair to impose a total of five years' imprisonment for the robberies and, of course, the activated sentences totalling eighteen months should have been added to that. We have, in the event, decided that the best way of achieving what we have in mind is to quash the present sentences and to substitute therefor two years' imprisonment on each of the four charges, those sentences to run concurrently with each other but consecutively to the sentences imposed in 1978. We so order.

31st August 1979.