HKSAR v. CHIU FAI

CACC332/2002

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO.332 OF 2002

(ON APPEAL FROM HCCC NO.308 OF 2001)

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J U D G M E N T

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Hon Pang J (giving the judgment of the Court) :

1. The appellant, Chiu Fai, pleaded guilty in the magistracy to two charges of burglary, one charge each of attempted burglary, theft and possession of an offensive weapon in a public place. He was committed for sentence in the Court of First Instance.

2. On 6 February 2002, he went before Deputy High Court Judge Barnes and was sentenced to a total term of four years' imprisonment. The respective sentences are :

Count 1	Burglary	:	2 years
Count 2	Attempted burglary	:	1 year
Count 3	Theft	:	4 months
Count 4	Burglary	:	2 years
Count 5	Possession of offensive weapon in a public place	:	1 year

The Deputy Judge ordered that the sentences for counts 1, 2, 3 and 5 to run concurrently and that of the 4th count burglary to run consecutively thereby making an effective term of four years' imprisonment. In his homemade grounds of appeal dated 11 July 2002, the appellant stated that :

"I cooperated with the police at the police station and pleaded guilty in court. After coming in here, I found that (the sentence passed on me) was the same as (the sentence passed) on other defendants in cases of the same type. I think the sentence is too heavy."

3. By a notice dated 11 July 2002, the applicant applied for leave to appeal against his sentence out of time. The application was heard before Stock JA on 17 December 2002 and he granted leave to the appellant to appeal out of time.

4. The facts of this case indicated that shortly after 1:45 a.m. on 25 April, a civilian, one Mr Li, saw the appellant squatting at the car park outside the Tung Tak School at Kam Tin in the New Territories. He went over to the appellant and tried to ask what he was doing there at which point of time the appellant produced a chopper and threatened Mr Li with it. The appellant then fled. Mr Li reported the incident to the police who later found the appellant inside an abandoned hut. The chopper forming the subject matter of the possession of offensive weapon count was recovered from the appellant.

5. Under caution, the appellant admitted to having sneaked into Hong Kong illegally from China on 20 April 2001. The offences were all committed within a 24 hour period commencing on the morning of 24 April when he first broke into a hut in Shek Kong, Kam Tin and stole cash in a sum of $38.5 there from. Later in the morning, he went to another hut in Tsat Sing Kong Tsuen, in the Pat Heung area and tried, unsuccessfully, to break into it. Later again in the same day, he stole three chickens from Kong Lik Farm that he cooked and ate. The last burglary was committed when the appellant broke into a container office at a construction site in Tai Kong Po Village in Yuen Long where he stole a bag and a pair of sunglasses.

6. The Deputy Judge adopted a global sentence starting point of seven years and after giving a one-third discount for the appellant's pleas, she gave a further discount of eight months for the his co-operation with the police. This is what she said in her reasons for sentence :

"I bear in mind that the defendant pleaded guilty at the committal stage and the fact that the offences of theft, burglaries and attempted burglary came to light as a result of his ready confession, I am prepared to give the defendant a further discount of 8 months as recognition. The total sentences for these offences is there one of 4 years."

It is now very much a matter of principle that a timely plea will invariably attract a discount of one-third on the prison term passed. This is usually to be regarded as the "high watermark of the discount given to a defendant pleading guilty in good time" (see: Lee Kwok Chuen, CACC 445/2000). There was no justification for an increased discount for the pleas in the present circumstances nor should the judge's remarks be allowed to create an impression that a timely plea other than at the committal stage may somehow attract a lesser discount.

7. While the individual prison term for the offences cannot be faulted, we feel that the Deputy Judge had not given sufficient consideration of the fact that the appellant had volunteered information to the police on the offences which would have otherwise been extremely difficult if not impossible to detect. We also consider the properties stolen were insubstantial and that none of the premises in question were occupied at the time. The term of four years' imprisonment, in our view, is manifestly excessive. The appropriate sentence would have been a term of three years' imprisonment.

8. To achieve this end, we would order that the sentences for the 1st, 2nd, 3rd and 4th counts are to run concurrently with the one year term for the 5th count to be consecutive and thereby making a total term of three years' imprisonment.

9. The appeal against sentence is allowed to the extent as indicated.