HAN NAM v. R.

IN THE COURT OF APPEAL

1994, No. 39
(Criminal)

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J U D G M E N T

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Litton, J.A. giving the judgment of the court:

1. This is an application for leave to appeal against sentence on two convictions by Deputy Judge Morley in the District Court on 3 January 1994. There appears to be an error in the Correctional Services' record of the conviction on charge 1. This applicant Phan Nam (D2 in the court below) was acquitted on the charge of robbery but convicted on the alternative charge of theft, but the record erroneously shows that he was convicted of robbery on the first charge. On charge 1 he was sentenced to 2 1/2 years' imprisonment and on charge 6 he was sentenced to three years' imprisonment to be served consecutively, making a total of 5 1/2 years.

2. There were two incidents involved. Charge 1 concerned a flat at G/F Block E, Kent Mansion, Kent Road Kowloon. The applicant (D2) together with D1 broke into the flat at about 3.30 am on 28 October 1992, threatened an occupant with a screwdriver, tied her up, covered her up with a quilt and tied a rope around her neck. They then stole cash of $30,000 plus other valuables. On this charge the judge was satisfied that theft had been committed, but was not satisfied that there was a joint enterprise to use force to rob; as he was not sure which of D1 or D2 had threatened the victim and tied her up, he rather mercifully acquitted them of the charge of robbery. Burglary not being an alternative within his power to convict he convicted this applicant of theft.

3. On charge 6 to which this applicant pleaded guilty the facts briefly were as follows. He, D2, together with D1 burgled a house at Clear Water Bay some time during the night of 28 and 29 September 1992 and stole valuables there including a collection of Ching Dynasty coins.

4. The Judge's approach in regard to the two charges was as follows: In sentencing this applicant of theft on the first charge he took into account the following aggravating factors: that the premises concerned were a private home; the crime occurred at night; D1 and D2 acted in concert and they ransacked the place. The judge took four years as the starting point, but on the basis of an admission of guilt to burglary which this applicant had made in the course of his testimony the judge discounted the sentence to 2 1/2 years' imprisonment.

5. In respect of charge 6 the judge took 4 1/2 years as the starting point, and in view of the guilty plea reduced it to three years, the sentences to be served consecutively making a total of 5 1/2 years.

6. The applicant said in his grounds of appeal that he did not smash any doors or windows when entry was gained into the flats. He has also recounted to the court today the tragic circumstances of his family in their escape from Vietnam. These are not matters which carry much weight in the scales. The judge was dealing with two occasions of serious crime, one of theft in a flat and the other of burglary. Force and the threat of force was used. In our judgment the sentences totalling 5 1/2 years' imprisonment were not manifestly excessive nor wrong in principle. The application for leave to appeal must therefore be refused.