THE QUEEN v. CHAN WING CHING

Headnote

Burglary: proper sentence R. v. Chan Yui Man Criminal Appeal No. 36 of 1988 adopted and approved.

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JUDGMENT

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Power, J.A.:

1. This is the judgment of the Court.

2. This applicant faced three charges of burglary. The first alleged that on 25th November 1990 he, as a trespasser, entered the Lap Shing Building at Room 2 on the 2nd floor, No.317 Ngau Tau Kok Road, and stole an Aiwa walkman, the property of Mr. LAU Chun. The second alleged that on 25th November he had entered the same building as trespasser and had gone to the 4th floor with intent to steal therein. The third charge alleged that on 23rd November, and that again concerned premises at the 2nd floor of the Lap Shing Building, alleged that, having entered as a trespasser he stole therein a green wallet containing $100 cash, an identity card, a Hang Seng Bank card and an address book, the property of Mr. LAU Chun, a black Giordano handbag containing a black wallet, $180 in cash, a Hong Kong identity card, a Moneylink card, an address book and some make-up, the property of MA So-heung.

3. The charges are not in orde of occurence but the sequence of events is made clear by the facts. The first burglary, charge 3, took place at about 1 a.m. on 23rd November. The applicant entered the premises while the victims were asleep and he took the articles therefrom which are set out in the charge.

4. The second burglary, charge 2, took place on 25th November in the same premises as the incident above. On this occasion Mr. LAU Chun was awakened and discovered the applicant trespassing. He approached and restrained him and obtained his identity card. He then ejected him from the premises, locked him out and immediately called the police. When the police arrived the applicant could not be located but it was found that he had stolen one Walkman.

5. The third burglary, charge 1, took place later on the same evening and the premises concerned were situated on the 4th floor of the Lap Shing Building. The applicant was discovered at those premises opening the iron gate by the occupant who apprehended him and, with the assistance or other tenants, subdued him. The police were then called and the applicant was arrested.

6. The grounds of appeal state that the sentence was excessive in that the trial judge failed to consider matters which merited a shorter total sentence. These were enumerated as: the age of the applicant, the dates of the offence, particularly those two which occurred on the same day, the facts of the second charge, which, as I have indicated, were unusual insofar as the applicant surrendered his identity card, and the fact that this was the applicant's first sentence of imprisonment. His criminal record revealed, however, that he had been convicted in 1982 of two robberies; in 1987 of one robbery; in 1988 of one robbery, 4 burglaries and one handling of stolen goods. These had resulted in probation, detention centre and, on the last offences, training centre orders. It was also suggested that full weight had not been given to the applicant's guilty pleas.

7. The age of the applicant cannot, in our view, be given any real weight when the discount is being considered. We do bear in mind that two of the offences took place on the same evening and that all three offences took place in the same building and were only two days apart. They were, however, not parts of one transaction. There were two separate offences of burglary and one of attempted burglary.

8. There can be no doubt given the seriousness of the offences and the applicant's record that a sentence of imprisonment was called for. The court when it came to sentence said:

9. The argument advanced by Mr. Grounds is that the trial judge, while he did not err with regard to the sentences taken singly, arrived at a totality that was excessive.

10. We are satisfied that this was not so. The trial judge was wrong only in that he took a starting point of two years which was manifestly too low. In the unreported case of The Queen v. CHAN Yui-man, Criminal Appeal No. 36 of 1988 the Vice-president stated as follows:

"We have also been referred to Lau Siu Kwong Crim. App. 628 of 1987 in which it was said that two and a half years was the correct starting point for a burglary of non-domestic premises. These premises were, of course, domestic. We think three years is about the proper starting point for a first offender of full age."

That clearly sets out the starting point for burglary and we endorse that figure as the proper starting point for a first offender of full age.

11. Certainly the pleas of guilty had to be taken into account. We are quite satisfied that had the trial judge adopted the proper starting point his totality of sentence would not have been less than the four years which was imposed. When saying this we take into account the discount for the pleas but bear in mind that any discount had to be looked at in the light of the bad criminal record of the applicant.

12. Nothing has been raised in this appeal which in any way indicates that the overall sentence of four years was too long. The application for leave to appeal must therefore be dismissed.