THE QUEEN v. CHEUK FUNG PING

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R E A S O N S

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Nazareth, J.A. (giving the judgment of the Court):

1. On 21st May 1992 we dismissed the applicant's application for leave to appeal out of time against the sentence of 3 1/2 years imprisonment imposed upon him in the District Court by Deputy Judge T. Lee for an offence of burglary contrary to s. 11(1)(a) of the Theft Ordinance. The applicant and another accused were jointly charged with the offence in November 1982. However, the applicant failed to appear having been released on bail. He was arrested some eight years Later and found guilty after trial.

2. The facts can conveniently be taken from the Judge's Reasons for Sentence. In the early hours on 2nd November 1982 the householder victim (PW1) was woken up by some noise outside his bedroom. He was then attacked by two burglars when he went into the Living room to investigate. The two burglars tried to leave the scene after a struggle with PW1 and an unsuccessful attempt to force their way into the bedroom in which PW1's wife and his baby daughter were. But they were trapped behind a locked iron grille in the corridor. Both the applicant and the other burglar were thus arrested by police who later found a nylon rope in the living room. It appeared that the rope was brought along by the two burglars and that they had entered the flat through a lavatory window.

3. In his Notice of Application for leave the applicant listed the following three grounds:

(1) In similar cases, the sentence is usually 18 to 24 months of imprisonment. Yet, I was sentenced to 42 months of imprisonment. I pray Your Honour to review the case and reduce the sentence. Please grant me a chance to start afresh and go back to society.

(2) I have my wife, two children with the eldest son aged 10 and the youngest daughter 5. To maintain the basic standard of living, the monthly expenditure of the family is about $5,000. As my wife does not have a job and my children are still at school, I pray Your Honour to understand my family background and the difficulties, and reduce the sentence.

(3)After the offence took place in November 1982, I had a proper job as a cook in a restaurant. I had not committed any offence since then. I pray you to understand my eagerness to start afresh and reduce the sentence.

4. Before us at the hearing of his application, he complained that his co-offender had, despite having committed three other offences, received the same sentence of 3 ¹/₂ years. It transpires, however, that the sentences in respect of those offences were suspended sentences that were then activated; moreover the circumstances of those offences are not clear.

5. Next, the applicant explained to us that although he absconded in 1982, that was due to his mother's sickness. She was paralysed at the time and in need of his care. She had since died. He now has a family. The son and daughter referred to in his written grounds, and his wife need him. He is the sole bread winner and his wife, he says, has great difficulties. We find no merits in these grounds, which apply to most sentences of imprisonment.

6. We turn then to the applicant's first. written ground in his Notice of Application. We are indebted to Mr. A.A. Bruce who appeared for the Crown, for calling our attention to three authorities. In Ho Chi Keung v R Cr. App. No. 783 of 1977, the appellant was convicted upon his own plea of eight charges of burglary. All the premises were unoccupied and the appellant took only an item or two from each. Five of the burglaries would not have been known to the police save for the appellant's confession of the offences. The court held that 4 ¹/₂ years imprisonment was unduly high and reduced it to a sentence of 3 ¹/₂ years. In R v Li Ming Cr. App. No. 480 of 1985, Sir Denys Roberts C.J. observed that the usual sentence of burglary is between two and four years. Finally, in AG v Chan Wai Fai AR No. 19 of 1988, the court noted that in Chan Yiu Man Cr. App. 36 of 1988, it was suggested that three years after trial is about the proper starting point for a first offender of full age for a burglary in domestic premises, and went on to impose sentences of three years in respect of burglary charges which do not appear from that judgment to have been of any aggravated nature.

7. In the applicant's case, however, the victim's evidence, which was accepted, was that he was grabbed by the neck and punched, and an attempt was made to break into the bedroom of his wire and baby daughter. In that respect the offence was more akin to robbery than burglary. However that may be, clearly the sentence of 3 1/2 years was not excessive.

8. The applicant emphasised the burden of his third written ground, stressing that he had led a responsible and law abiding life for the last eight years. We pause here to make it clear that we do not take the applicant's failure to appear in breach of his bail conditions into consideration against him. That said, he has only himself to blame for the extended period before he was brought to trial, during which he created a new life for himself, for his family, and above all led a responsible and law abiding life for the last eight years. As to the latter, in the particular circumstances of this case, we do not think it is a consideration that warrants a reduction of the sentence.

9. In the result, the applicant not. having advanced any good reason for the delay in making his application, we refused it.