HKSAR v. TANG WING CHEUNG

CACC 146/2002

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 146 OF 2002

(ON APPEAL FROM DCCC 103 OF 2002)

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J U D G M E N T

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Hon Yeung JA (giving judgment of the Court):

1. The applicant pleaded guilty to a charge of burglary. Deputy District Court Judge Sham sentenced him to 3 years' imprisonment. The applicant now seeks leave to appeal against the sentence.

2. The offence took place at a public housing unit in Sun Yee House in Shatin. The victim returned home in a hurry. She forgot to lock up the door. The applicant entered the unit and took away the victim's handbag.

3. The applicant was arrested in Sun Yee House shortly after the offence. The police found some of the stolen items on his person. The applicant admitted the offence and took the police to recover the rest of the stolen items.

4. The applicant had 12 previous convictions many of which are similar offences. Those offences were committed over a period of 20 years. In fact the present offence was committed about 1 week after his discharge from jail.

5. The judge accepted that neither force nor instrument had been used to gain entry into the unit. He also accepted that the applicant did not alert the victim after he had gained entry.

6. The judge classified the offence as a burglary of domestic premises. He adopted a starting point for sentence of 3 years imprisonment.

7. However, the judge enhanced the starting point to 4 1/2 years imprisonment because the applicant was a repeated offender, relying on HKSAR v Chan Pui Chee [1999] 2 HKLRD 830.

8. We have repeatedly said that persistent offenders who show no interest in attempts to rehabilitate themselves will face longer sentences and the starting point will need to be increased to reflect such aggravating feature.

9. In our view, the applicant clearly falls with the category of persistent offenders and the judge was right in describing him as "a danger and threat to society."

10. On the other hand, the case itself is clearly not a very bad case of the type. No force was used and the victim was not threatened in any way. It was an entirely opportunistic offence.

11. We are of the view that an increase of 50% is excessive, as fairly conceded by Mr. Madigan, Senior Government Counsel. An enhancement of sentence by as much as 50% on account of the previous convictions of the defendant is wrong in principle.

12. We are of the view that on the facts of the case and the backgrounds of the applicant, including his previous convictions, a suitable starting point is 3 years and 6 months imprisonment despite the submission by his counsel, Mr. Andrews that 3 years and 9 months is appropriate.

13. The applicant is entitled to the one-third discount for pleading guilty to the charge. The suitable sentence should therefore be 2 years and 4 months imprisonment.

14. The sentence of 3 years imprisonment imposed on the applicant is manifestly excessive and should be reduced.

15. We grant the application and treat the application as the appeal, allow the appeal and reduce the sentence to 2 years and 4 months imprisonment.