HKSAR v. YOUNG KWONG KEUNG

CACC112/99

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO.112 OF 1999

(ON APPEAL FROM DCCC1404 OF 1998)

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J U D G M E N T

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Stuart-Moore J.A. (giving the judgment of the Court):

1. On 4th February 1999, the Applicant pleaded guilty before Judge Toh to a charge of burglary of non-domestic premises on 31st July 1998, and was sentenced to twenty months' imprisonment. This sentence was ordered to run consecutively to a total sentence of sixteen months' imprisonment imposed by another judge on 1st December 1998, which was in respect of five other cases of burglary.

2. The Applicant now seeks leave to appeal against the sentence most recently imposed. His main complaint is that when he was sentenced by a judge on 1st December 1998 for five burglaries, the "sixth" charge, which is the one presently before this court, had been separated from the others through no fault of his own and could not be dealt with at the same time. The reason, it appears, that this happened is that the computer responsible for identifying fingerprints on preliminary comparison only did so after the other offences were well on their way to trial. Instead of all the charges, therefore, being heard together, this offence, in the series of burglaries, came before a different judge on a different occasion. The Applicant says that this has caused him unfairness because of the imposition of a long consecutive sentence.

3. Judge Toh correctly set out the starting point for non-domestic burglary as 21/2 years' imprisonment. She went on to say:

"The defendant has a previous conviction of five counts of burglary for which he was sentenced to 16 months' imprisonment on each and they were to be served concurrently. Mr. Hui (defence counsel) has called for the probation officer's report which was prepared on the last occasion in December 1998. It is clear from that report that the defendant, aged 26, has a young son of 3 years 11 months who is at the moment being looked after by his grandfather.

The defendant is not young and cannot at this time blame the loss of his family fortune for his misdeeds. This offence was well-planned and executed. Nobody saw the defendant with the stolen goods but there was a window in the office which had been broken into. Altogether two printers, two pagers and the parts of two computers were stolen but only the defendant was arrested.

Because of the defendant's plea, I will reduce the sentence of 21/2 years by one-third so the defendant will go to prison for 20 months and this will be served consecutively to the sentence he is serving now."

4. The probation report referred to was prepared for Judge H.C. Wong in the earlier proceedings.

5. Although, by the time the case came to court on 4th February 1999, the Applicant could be described as having a previous conviction comprised of the five other offences of burglary, the judge was made aware that these were all part of the same series of offences. We feel that the sentence of sixteen months for five burglaries imposed by Judge H.C. Wong was, on the face of it, a remarkably light sentence in the light of all the guidelines this court has set. Whether or not such leniency can be justified we do not know, in the light of the paucity of information about those other offences.

6. Turning to the present offence, this was a well-planned burglary as the judge said, and it was the Applicant's fingerprints that led to his guilt being established. The twenty-month sentence imposed was entirely appropriate. The question we have to ask ourselves is whether this should be allowed to remain a wholly consecutive sentence to the sentence of sixteen months which the Applicant had earlier been ordered to serve.

7. In view of the circumstances which we have already set out, in the absence of some unforeseen situation, we feel that a fully consecutive sentence could probably only have been justified if this had been a burglary which was committed whilst on bail awaiting trial for the other offences. In the circumstances, we feel that the sentence should be partially concurrent to the other sentences. We have concluded that justice would be served if we substitute for the order made by the judge, which had the effect that the Applicant would serve three years in all, an order that only eight months of the sentence should be served consecutively to sixteen months, making two years in all.

8. We shall, accordingly, give leave and, treating the hearing as the appeal, we shall make the order we have indicated that eight months only of the sentence should be served consecutively and, to that extent, the appeal is allowed.