HKSAR v. CHAN KAM MING

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

1997, No. 616
(Criminal)

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J U D G M E N T

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

1. The applicant Chan Kam-wing pleaded guilty in the District Court to one count of burglary. He was sentenced on 22nd September 1997 to 20 months' imprisonment. He now applies for leave to appeal against sentence.

2. The facts he admitted are these: On 15th February 1990 the applicant went to the rooftop of the building at 194 - 200 Cheung Sha Wan Road, Kowloon. He scaled down the outside wall of the building to the 12th floor and broke open the window of the premises at No. 1204. He went inside the premises and stole cash of HK$1,500, a jacket, a VCR and a telephone. In the course of it, he left his right index fingerprint on the premises. In 1997 police identified the fingerprint as that of the applicant. The applicant was arrested in April 1997 and under caution, he admitted the burglary.

3. The applicant was 40 years old and he has a history of fourteen criminal convictions of which seven are burglary offences and two are robbery offences.

4. The applicant was sentenced to 18 months' imprisonment suspended for three years in February 1990 for a burglary he committed in May 1989. On 20 August 1991 he was sentenced to a total of 2 years' imprisonment for four burglaries he committed in June 1991 and the suspended sentence of 18 months was activated so that he had to serve a total of 3 years and 6 months. On 2nd February 1994 he was sentenced to 9 months for burglary and this was consecutive to his earlier sentence. On 6 May 1994 while he was still serving a sentence, he was prosecuted for burglary and was sentenced to 18 months' imprisonment consecutive to his other sentences. This latter sentence was reduced to 12 months' imprisonment on 22nd September 1994 on appeal before Jerome Chan J. who held that if the two cases had been dealt with together, the total sentence for the two cases would have been between 18 to 21 months.

5. In the present case it was submitted before the District Judge that the applicant was prosecuted in 1997 for the burglary he committed in 1990. If the applicant had been dealt with together with the other offences, he would have been dealt with as in the case before Jerome Chan J.

6. The judge adopted a starting point of 3 years and she gave one year discount for his plea. The judge acknowledged that there was delay in prosecuting the applicant resulting in paying less than adequate regard to totality. But she did not think this was sufficient ground for mitigation because the applicant continued to commit similar offences after the present offence. Nevertheless, in view of the special circumstances of the case the judge gave the applicant a further discount of 4 months making a sentence of 1 year and 8 months that is a total of 20 months' imprisonment.

7. There is only one ground of appeal i.e. the judge failed to adequately take into consideration the totality principle in the context of the applicant's criminal history. It is submitted that the judge failed to give consideration to the fact that this offence should have come to light before the applicant's release at the latest by the time when the applicant was sentenced for burglary on 3rd February 1994. With an earlier detection, the applicant would have been dealt with in the Magistracies.

8. There is no explanation as to why the police were able to identify the applicant's fingerprint in 1997 and not before, except for what Jerome Chan J. was told in the applicant's appeal before him that "either a computer error or simply because of the lack of resources to either check or countercheck". Nor is there any reason to suspect the delay in bringing the prosecution was malicious or deliberate. The fact is, and that is agreed by the applicant, the prosecution was only able to establish in 1997 by evidence that the burglary in 1990 was committed by the applicant. It would be speculative to suggest that this offence should have come to light by 3rd February 1994 at the latest.

9. The judge's starting point of 3 years for this single burglary of domestic premises cannot be regarded as erroneous and Mr. Percy for the applicant takes no issue on that. In fact it is lower than what has been laid down in AG v LUI Kam-chi [1993] 1 HKC 215 because the applicant is a repeated offender in burglaries. If the present offence had come to light earlier and could be sentenced in 1994 together with the other burglaries committed by the applicant, because there were multiple domestic burglaries, at least four, committed over a period of time, the sentencing court could have taken a global view and adopted a sentence of at least 3 years' imprisonment or perhaps even higher.

10. For all the four burglaries, the applicant was given separate sentences, totalling 41 months. When that is compared with the 36 months which might have been imposed had all the burglaries been dealt with at the same time, the sentence of 41 months, though arguably on the higher side, cannot be regarded as manifestly excessive. At first blush, the last sentence i.e. the sentence of 20 months taken in isolation in the totality principle might give rise to a false sense of grievance, but on proper reflection, the length of the total sentences imposed is just about right. The small difference between 36 months and 41 months cannot be reviewable. In assessing sentence, as she indicated in her reasons for sentence, the judge had considered the totality principle and indeed, she was fully aware of the applicant's criminal history. She was correct in giving the applicant one year discount for his plea and reducing the sentence further by another 4 months.

11. In these circumstances, we do not think that we should interfere. The application for leave to appeal against sentence is refused.