The Attorney General v. LUI Kam-chi

Application for Review

No.1 of 1993

IN THE COURT OF APPEAL

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J U D G M E N T

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Nazareth, J.A.

1. On the 6th January 1993, the respondent Lui Kam Chi pleaded guilty before His Honour Judge Sharwood in the District Court to three counts of burglary and was sentenced on each to 15 months' imprisonment to run concurrently.

2. With leave for that purpose granted by the Chief Justice on 21st January 1993, the Attorney General applied for review of the sentences. Having heard counsel on the 29th April 1993, we allowed the application, set aside the sentences and substituted instead a sentence of 2 years on the 1st count and sentences of 6 months' imprisonment on each of the 2nd and 3rd counts to run consecutively to achieve a total of 3 years.

3. The charges were of burglary contrary to s.11(1)(a) and (4) of the Theft Ordinance, Cap.210 on the 1st charge and contrary to s.11(1)(b) and (4) in respect of the 2nd and 3rd charges. The particulars were as follows:

1st Charge - that the respondent on the 20th March 1992 at Kowloon, entered as a trespasser Room 5, 1st Floor, No.3 Wu Kwong Street, Tokwawan, with intent to stead therein.

2nd Charge - that the respondent on the 10th of March 1992 at Kowloon, having entered as a trespasser the Ground Floor, No.27A Whampoa Street, Hung Hom, stole therein a jacket, the property of Wong Kwai-yam and a leather jacket, the property of TSANG Ka- kei.

3rd Charge - that the respondent on or about the 28th February 1992 at Kowloon, having entered as a trespasser Unit 8, 2nd Floor, No.44- 56 Bulkeley Street, Hung Hom, stole therein cash approximately $2,000 Hong Kong currency, one identity card and one Kincheng Banking Corporation passbook of CHAN King-chun.

4. The facts admitted pursuant to s.65C of the Criminal Procedure Ordinance were only that the leather jacket specified in charge 2 and the property specified in charge 3 were stolen from the respective premises specified by someone who entered as a trespasser. Some of the other relevant facts are contained in the judge's reasons for sentence which were as follows :

" The defendant pleaded guilty to three counts of burglary committed in February and March 1992, after his cautioned statements had been admitted into evidence.

He was caught red-handed when entering premises as a trespasser, with intent to steal. He later confessed to entering two other premises as a trespasser and stealing two jackets, and $2,000 cash, an identity card and a bank passbook respectively.

He is 27 years of age and has a clear record. He arrived from China in 1980, when he was 15, and has worked in Hong Kong since then. I was informed that it was only after he lost his job that he resorted to this type of offence.

These offences in my view, the least serious type of burglary. The defendant used no tools or implements, but looked for opportunities to enter premises whose doors had been left open.

In my view, an immediate custodial sentence was called for, but I was inclined to be lenient. I sentenced the defendant to 15 months imprisonment on each count and ordered the sentences to be served concurrently."

5. It has to be added that the respondent pleaded to the 1st charge at the commencement of the trial and to the 2nd and 3rd charges in the course of the trial after his cautioned statement, which he challenged, was held to be voluntary by the judge, following a voire dire.

6. The Attorney General's application is made on the basis that the sentences were manifestly inadequate and/or wrong in principle. Mr Saw for the Attorney General submits that the sentences were wrong in principle in relation to multiple offences and likewise in relation to each offence.

7. In relation to multiple offences, the proper approach, which was not disputed by Mr Jimmy Kwong for the respondent, was stated by Barker J.A. in The Queen v Tong Hoi-fung [1988] 1 HKLR 610 at 611 I-J in the following way :

" This Court has said time and time again that where there is more than one offence of a similar nature committed at different times it is right for the court to award a higher sentence than if there had been only one offence. We cannot accede to Mr Forrest's submission that we should treat the sentences concurrently,..."

The offences were committed in different premises against different victims on different dates. Clearly they cannot be regarded as part of the same transaction. We can see no justification for concurrent sentences.

8. Turning to Mr Saw's second submission, this was that the judge could not have applied the correct starting point on the individual sentences. It can be seen from his reasons that the judge did not indicate any starting point nor any discounts that may have been given. This Court has repeatedly pointed out the difficult position in which it is placed when that is not done. In The Queen v CHAN Yui Man, Criminal Appeal No.36 of 1988, upon which Mr Saw relies, this Court held that in burglary of domestic premises, 3 years was about the proper starting point for a first offender of full age. This was followed in R. v. Chan Wing Ching (Criminal Appeal No.100 of 1991, unreported) and more recently in The Queen v Luk Wai Kit, Criminal Appeal No.99 of 1992 and The Queen v Wong Man, Criminal Appeal No.372 of 1992, in both of which the earlier authorities were reviewed.

9. Likewise the correct starting point for burglary of non-domestic premises is 2½ years (The Queen v Lau Siu Kwong, Criminal Appeal No. 628 of 1987; and Chan Wing Ching, Criminal Appeal No.100 of 1991).

10. We turn then to the question of any discount applicable. The respondent is entitled to some discount for his pleas of guilty. Clearly it would have to be limited. He was caught red-handed in respect of the 1st charge. In respect of the other two charges, he only pleaded guilty after his cautioned statement was admitted. At the same time in his favour is his ready admission to the police of the latter two offences (Charges 2 and 3) which would not have been discovered but for his admission. Besides, his pleas did save the prosecution some effort in establishing them. Some discount must be allowed for that too. In addition, a discount may be allowed where a sentence is greatly enhanced on review (see A.G. v Wong Kwok Wai [1991]2 HKLR 384), and this in our view would extend to such enhancement by substitution of consecutive in lieu of concurrent sentences.

11. For his part, Mr Kwong submits that the judge was right in taking a lenient view of the offences. The respondent had a clear record. He committed the earlier two offences (counts 2 and 3) on impulse. Going past the factory entrances, he noticed the items in question just inside, and took them. There was no one present, and those offences, which the victims did not even bother to report, were akin more to those of a sneak thief than ordinary burglary usually committed at night by forcing windows and possibly terrifying occupants. The last offence (Charge 1) was committed at mid-day, when the occupant was having a siesta.

12. In those circumstances, which Mr Saw did not dispute, even if Mr Kwong's view of them is not accepted, we think the judge was entitled to regard the offences, at any rate those that were the subject of the 2nd and 3rd charges, as not being of a serious type of burglary. The 1st charge, however, did involve an invasion of domestic premises and the possibility of a confrontation with the occupant.

13. In the light of all the foregoing consideration, approaching the matter on a totality basis (see e.g.Tong Hoi-fung at p.612) it seemed to us that the appropriate total sentence should be 3 years, and that it would be appropriately achieved by a sentence of 2 years on the 1st count and 6 months on each of the 2nd and 3rd counts.