R. v. HO FUK CHEUNG

1996, No.197
(Criminal)

IN THE COURT OF APPEAL

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J U D G M E N T

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Nazareth, V.-P. (Giving the Judgment of the Court) :

1. On 4th March 1996, the applicant Ho Fuk Cheung pleaded guilty before HH Judge Jackson in the District Court to five offences. The first was using another person's identity card, contrary to s.7A(1A) of the Registration of Persons Ordinance. In respect of that, he ultimately received the sentence of 3 months. The second was of the theft of that identity card that he used. The remaining three offences were burglaries, contrary to s.11(1)(b) and (4) of the Theft Ordinance. On these, he was sentenced to 2 years, 21/2 years and 3 years. The two sentences of three months were ordered to be consecutive and the three sentences in respect of 2 years, 21/2 years and 3 years were ordered to be concurrent with each other but consecutive to the other sentences, making a total of 3 years and 6 months.

2. The facts can be quite shortly stated. On 21st December 1995, the applicant was stopped by the police in Wanchai. He produced an identity card which turned out to belong to one Au Yeung Siu Hung. On further enquiry, he revealed his true identity and admitted under caution that he had stolen the identity card from a friend. These matters were the subject of the first two charges.

3. The first burglary charge to which he pleaded was in respect of Flat C, 3rd Floor, Green View Mansion, No.57, Wong Nai Chung Gap Road which was entered between 25th and 26th November 1995. Two finger-rings and ￡80 Sterling were taken.

4. The second burglary was of that same flat about a week later on 2nd December 1995. This time he took a bracelet with a diamond clasp, a pearl necklace with a diamond clasp, two gold necklaces, a gold bracelet and two finger-rings.

5. The third burglary was of Flat A, 2nd Floor, Broadview Mansion, No.75, Wong Nai Chung Road on 12th December 1995. Four finger-rings, two gold bracelets, three pairs of ear-rings, three gold necklaces and a gold pendant were taken.

6. Needless to say, all these burglaries were of domestic premises and the burglaries were committed while the occupants were out.

7. The applicant, in his grounds of appeal, says that he felt the judge was prejudiced against him in that he only considered his guilty plea and overlooked his co-operation with the police, meaning the supply of information leading to recovery of lost property. He says the judge emphasised his flaws that he had a long history of criminal record of 13 offences. He also felt that the consecutive nature of the sentences was unfair because the police constable told him it would be all right if he confessed. He subsequently added to those grounds saying that he never used any violence, any weapon or any instrument for burglary and that he merely committed the offence as a result of noticing that people were negligent. He says that he was deeply remorseful for having committed the offences, adding that he was very co-operative with the police and told them how he committed the crimes, provided them with accurate information and says that all the properties were retrieved later. Although he admitted the victims suffered losses, he said he did his best to minimise them and that during his trial, he also offered to compensate the victims, but his offer was turned down. Lastly, he says he comes from a single-parent family, his father is old and he urges the Court to reduce his sentence.

8. It turns out that his assistance was nowhere as helpful as he makes out, and that the police had to carry out investigations to retrieve property deposited with pawn brokers; also that the owners of the property had to pay the pawn brokers to retrieve some of their property. The offer to compensate was a bare statement made in the course of mitigation. He says it was turned down. The fact remains that the victims do not appear to have been compensated.

9. Viewing the first two offences, use of another person's identity card is a serious offence. In respect of that, he received only 3 months. The burglaries were also serious offences, and there were three of them. Expensive items were taken. It cannot be said that the individual sentences were excessive. The judge would have been entitled to have regard to those offences being separate offences and to impose sentences that were consecutive. That would have produced a total of 71/2 years and with a full discount of one third for his pleas of guilty, still 5 years on just the burglaries. In fact, the judge ordered them to be tried concurrently. We cannot see that he erred in principle or that the sentences are manifestly excessive. If anything they were lenient. There is no merit whatever in the applicant's grounds. Leave to appeal is refused.