HKSAR v Andrianiaina Adrien Luck Yu Pau
Court of Appeal
Criminal Appeal No. 129 of 2016
Lunn V-P and McWalters JA
7 March 2017

Multiple offences – totality – final stage of process by which court determined appropriate totality of sentence

D (who was in his mid-50s, had lived in Hong Kong since the age of eight and was treated as a man of previous good character despite a conviction for a minor offence in 1982) was sentenced to 60 months’ imprisonment after pleading guilty to four charges. Charge 1 was of taking a conveyance without authority; Charge 2 was of dangerous driving; Charge 3 was of using a motor vehicle without third party insurance; and Charge 4 was of robbery. The terms of imprisonment imposed on each of those charges after discounting the starting points for plea were: eight months on Charge 1; 16 months on Charge 2; six months on Charge 3; and 40 months on Charge 4. Four months of the sentences on Charges 1 and 3 were made consecutive to that on Charge 2; and the resulting total of 20 months was made consecutive to the 40 month-term on Charge 4, resulting in an overall sentence of 60 months’ imprisonment. Shortly stated, the circumstances of the offences were these. Boarding a temporarily unattended light goods vehicle, D drove it away. His driving included: reversing the vehicle against the flow of traffic several times; driving along a pavement; reversing along a pavement; ramming into four street stalls; damaging the exterior of two shops; and colliding with a set of traffic lights and the metal railing on a pavement. The damage to the street stalls and shops totalled HK$174,800; the cost of repairing the vehicle was around HK$70,000; and 12 oil drums had fallen off the vehicle. D was not in a position to pay compensation. After alighting from the vehicle, he entered a hotel. At the front desk, he pointed a screwdriver at a male member of the hotel staff; shouted, “Robbery, sound the alarm”; entered the front desk area; picked up the handset of a landline telephone and pressed the dialing buttons; picked up a mobile telephone belonging to a member of the hotel staff; threw the landline telephone handset onto the desk; and left the hotel with the mobile telephone which was never recovered. D was intercepted by a police officer about 20 metres from the hotel. Two screwdrivers, measuring 18 cm and 21 cm respectively, were found in D’s trouser pocket. Under caution, he said that he had entered the hotel to use the toilet; had been refused permission to do so; he had acted out of anger at such refusal; and had abandoned the mobile telephone in the rear lane outside the hotel. In a subsequent interview, he added that he had consumed “ice” in a park shortly before the offences; driven the vehicle away for fun; and had the two screwdrivers in his possession for the purposes of his work. D appealed against sentence.

Held, allowing the appeal by reducing the total sentence from 60 months to 48 months’ imprisonment, that:

  • By reason of the way in which the screw driver was used in this robbery, it was rightly regarded by the Deputy Judge as a dangerous weapon, and the starting point of 5 years’ imprisonment for the robbery was appropriate.
  • Given that the taking of the vehicle without authority was a single offence and D was of previous good character, the starting point of 12 months adopted by the Deputy Judge should be reduced to nine months and discounted for plea to six months’ imprisonment.
  • The Deputy Judge was entitled to find that the fact that no one was injured as a result of D’s dangerous driving was “entirely fortuitous”; and to adopt a starting point of 24 months (discounted for plea to a sentence of 16 months’ imprisonment) for dangerous driving.
  • In all the circumstances, having regard to the fact that D had no similar previous convictions, the starting point of nine months adopted by the Deputy Judge for using a motor vehicle without third party insurance should be reduced to six months and discounted for plea to a sentence of four months’ imprisonment.
  • Given the Court of Appeal’s conclusion that the sentences imposed by the Deputy Judge for taking a conveyance without authority and using a motor vehicle without third party insurance were too high, and noting the reduced sentences imposed by the Court of Appeal, D’s overall culpability for those two offences was appropriately to be reflected by ordering that only two months of those sentences run consecutively to the sentence of 16months’ imprisonment for dangerous driving.
  • In determining the appropriate totality of sentence, it was necessary to take a step back from a consideration of the appropriate sentences for each of the separate offences. Regard was to be had to the fact that D was a 55-year-old man at the time of the offences who had apparently led a productive working life and, in particular, that he was to be treated as a man of no previous convictions. He had in a short period of time visited disaster upon himself. In all the circumstances, the appropriate totality was to be achieved by ordering that only 8 months imposed on Charges 1–3 run consecutively to the 40-month term for robbery.
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