HKSAR v. LEE KWOK CHUEN

CACC 445/2000

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 445 OF 2000

(ON APPEAL FROM DCCC 799 OF 2000)

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J U D G M E N T

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Stuart-Moore VP (giving the judgment of the Court):

1. On 16 October 2000, the Appellant, aged 23, pleaded guilty in the District Court before Judge Z.E. Li to three charges of domestic burglary. He was sentenced to a total of four years' imprisonment. Leave to appeal was granted on 12 April 2001 by Stock JA.

2. The facts were very straightforward. The Appellant burgled two neighbouring flats on the 23rd floor of a block in Shatin during the afternoon of 29 July 1999 while the occupants were out. Several valuable items of jewellery were stolen from one flat and an item of small value was taken from the other, but this other flat had been ransacked in the process.

3. The third burglary occurred about nine months later, during the afternoon on 5 May 2000. Hong Kong and American currency together worth about HK$3,700 and four valuable ballpoint pens were stolen from this flat which was on the 16th floor of a block in Tsuen Wan.

4. The Appellant's identity was established from fingerprints he left at the scenes of crime. He was arrested on 12 May 2000 at the Lo Wu Checkpoint.

5. The judge, when passing sentence, took concurrent starting points of three and a half years' imprisonment for each of the burglaries committed in July 1999. No criticism is made of this. In relation to the last burglary, the judge took a starting point of three years, which he considered should, after it had been discounted to take into account the mitigation, be imposed consecutively. The overall starting points taken, therefore, amounted to six and a half years' imprisonment before the judge considered totality.

6. The judge went on to say:

"Of course I bear in mind the totality principle. I am a little reluctant to revise this total starting point because it is not that high. I also bear in mind that the facts show that the defendant made a career of burglaries over at least a one year period.

So using that 61/2 years as the starting point, I would of course give the defendant the full one-third discount for guilty pleas. That reduces the sentence to 52 months." (Appeal bundle p. 11)

7. Finally, and somewhat curiously for reasons we will come to later, the judge made a further reduction of four months to reflect the Appellant's previously clear record saying:

"So effectively your sentence is 48 months."

8. What the judge had overlooked was that he was duty-bound to impose a separate sentence for each offence. There then followed a discussion with counsel as to what sentence was to be imposed for each offence. We have not been provided with a transcript of what was said, but the Form XI which has been completed by the Correctional Services Department indicates that the result of the discussion was that concurrent sentences were imposed on charges 1 and 2 and a consecutive sentence of twenty-two months was passed for the last of the burglaries. Mr Wong, on the Appellant's behalf, accepts that these were the eventual sentences imposed.

9. Mr Madigan, for the Respondent, has very properly accepted that the judge in the present case does appear to have given only lip-service to the totality principle. We agree, and we consider that a more appropriate overall starting point for these three offences would have been four years. We do not criticise the individual starting points taken by the judge for the offences.

10. For the reasons we have given, this appeal must be allowed.

11. We shall not disturb the concurrent sentences of twenty-six months on charges 1 and 2. These sentences were in fact more lenient than they should have been. This is because they reflected an additional discount for previous "clear record", when the judge had already given a discount of one-third which is usually to be regarded as the high watermark of the discount given to a defendant pleading guilty in good time. We also observe that the judge, rightly or wrongly, had described the Appellant as having made a career out of burglaries for a year. If that was his view, any discount for good character should in any event never have been considered let alone implemented.

12. On charge 5, we shall again not interfere with the sentence of twenty-two months but we shall order that instead of this being a wholly consecutive sentence as the judge in the court below ordered, it should run consecutively to the extent of six months only, making an overall sentence of thirty-two months.

13. The Appellant succeeds on this appeal, therefore, in the manner we have indicated, to the extent that we reduce the overall sentence of four years to two years and eight months' imprisonment.