LEGAL DEPT 852-5-8690236
500 P08/14
HKLR CA
Attorney General v. Mohamed Hashirn Shamsudin (Cons, V.-P.)
831
30 A A
“—when judges are asking themselve; whether they should pass the maximum sentence-what they should consider is the worst type of offence which comes before the Court and ask themselves whether the particular case they are dealing with comes within the broad band of that type."
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We have no hesitation in concluding that al four offences in this instance come within m B B that category and merit sentences at or near the maximum.
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Pausing here we may observe that if the really serious offence is not adequately recognized, sentencing judges dealing with les; serious crimes may well have difficulty in giving appropriate effect to a scale of punishment laid down by statute.
Returning to the instant case it is necessary then to consider to what extent the sentences should run consecutively or concurrently.
The "one transaction" principle to be applied has been clarified in Attorney General v. Dominic Cheung Kai-man (1987] HKLR 788 in the following words at p. 7951-J:
... if the offences are distinct and separate it will normally be the duty of the judge to pass consecutive sentences, even if the seriousness of the individual offences means that the total sentence will be more than could have been passed in respect of any one of them... the totality principle requires the Court in the last instance to take a look at the total and to see whether, in the circumstances, it is just and appropriate and if not to reduce it accordingly."
The first two counts already described wire separate and distinct, albeit having the common features of fraud on the same institutions and for the benefit of the same party. The sentences ought therefore to be consecutive. Likewise the two advantages can in no way be said to have been accepted in the course of the same transaction, albeit both were derived from the same source. The sentences on these counts should therefore likewise be consecutive. Within the confines of the agreed facts there is no direct connection between the frauds and the bribes, but as it would be naive to think that the frauds were in fact not committed as the result of or in the hope of corrupt payments some degree of concurrency is justified between the two sets of sentences.
Thirdly we must consider what particular features of the case would entitle the respondent to some discount.
He was taken into the custody of the Correctional Services Department in Hong Kong on 24th November 1986. He was therefore in custody in England or Hong Kong from 6th December 1985 until sentenced on 14th January 1987. Section 67A of the Criminal Procedure Ordinance provides:
"(1) The length of any sentence of imprisonment imposed on a person by a court shall be treated as reduced by any period during which he was in custody by reason only of having been committed to custody by an order of a court made in connection with any proceedings relating to the sentence or the offence for which it was passed, or with any proceedings from which those proceedings arose.
(4) Any reference in this or any other Ordinance to the length of any sentence of imprisonment shall, unless the context otherwise requires, be construed as a reference to the sentence pronounced by the court and not the sentence as reduced by this section.
(5) In this section 'court' inclu‹les the District Court and a magistrate."
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