THE QUEEN v. LUK YIU-KEUNG

IN THE COURT OF APPEAL

1995, No.486
(Criminal)

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J U D G M E N T

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Power, V.-P.(giving the judgment of the Court):

1. This applicant pleaded guilty to six counts of burglary committed between 30th July and 22nd August 1994. All were committed in the Kwai Hing Estate in daylight hours when the householders were absent from their premises and the premises were unattended. When committing these offences it was clearly the intention of the applicant to take everything from the premises that was of value and was portable. In fact what he took was mainly jewellery and money. He received an overall sentence of four year and three months and he now seeks leave to appeal against that sentence.

2. The applicant had a bad criminal record dating from 1975 having been convicted of offences of theft, blackmail, robbery, assault and, on three occasions, of burglary. He had, however, not been convicted of any offences since 8th November 1988.

3. The trial judge said when sentencing:

"... I have to take into account that you were caught red-handed and you confessed and therefore you have had really little option but to admit to these matters. Nevertheless, it does show a measure of remorse and it has saved considerable court time. For those reasons, I can give you some credit for your pleas.

The appropriate sentence for a case of burglary is between 2 and 4 years imprisonment. It is an aggravating feature that here there are a multiplicity of offences over a one month period. It is also an aggravating feature that in each case there was an invasion of private premises by force. I disagree with your counsel. These are not petty matters. Significant property was taken. Only some of it has been recovered and there is no offer of compensation by you whatever. You have a poor criminal record. I don't sentence you any further for that but I cannot give you the lenience that I could show to someone with a good record. All these offences are totally separate and distinct. There is no good reason to order concurrent sentences, save for consideration of the question of totality of sentence. The most lenient sentence I can impose on each count is 3 years imprisonment. For charges 2 to 6 inclusively, they are concurrent in part and consecutive in part. The extent of the consecutiveness is 3 months for each charge. The total sentences that I impose therefore, amounts to 4 years, 3 months imprisonment."

4. Mr. McGowan, who appears today for the applicant, criticises the trial judge for:

(i) fixing an incorrect range of sentence for offences of this kind when he said that the range was from 2 to 4 years. He submits that the correct sentence after trial would be one of three years;

(ii) failing to take into account that since 1988 the applicant has not committed any offences;

(iii) failing to give sufficient credit for the remorse which he exhibited by pleading guilty;

(iv) taking into account the failure to offer compensation which, he submits, was not a matter which should have weighed at all with the trial judge;

(v) regarding the "multiplicity of offences" as an "aggravating feature".

We reject the submission that the judge was not, when sentencing, aware of (ii) and (iii) above.

5. The criticisms in (i), (iv) and (v) seem to us to involve semantics rather than substance. At the end of the day what must concern us is whether the proper totality of sentence was imposed. We are satisfied, given the number of offences for each of which a proper sentence could have been two years, making, had they been made consecutive, an overall sentence of 12 years, that the sentence of four years and three months scaled down giving weight to the totality was not excessive and was well within the proper range.

6. The application for leave to appeal against the sentences must, therefore, be refused.