THE QUEEN v. TANG PING

IN THE COURT OF APPEAL

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J U D G M E N T

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Penlington, J. A.:

1. This is an application for leave to appeal against sentence.

2. The applicant faced 3 charges of burglary in Fanling District Court. He pleaded guilty to one and asked that the other two be "taken into consideration", the Crown having entered a nolle prosequi in respect of those charges.

3. This is a procedure which I think fortunately, has not been very common in recent years. It is based on practice, not on any particular statutory provision. The effect of the procedure is that the sentence on the charge to which the applicant pleaded guilty should be increased or, as increased in the case of Lam Fu Chung v. R.⁽¹⁾, these should be a stiffening of that sentence, to reflect the charges taken into consideration.

4. Normally the charges are simply left on a file, not to be proceeded without leave of the court. However here a nolle prosequi was entered. The effect is the same in that the defendant faces a somewhat increased penalty but, except in quite exceptional circumstances, has wiped the sheet clean.

5. The facts, as agreed by the applicant, were that on the 24th March 1986 police officers saw him jumped down from some drainage pipes at the rear of a building in Sau Fu Street, Yuen Long. He was carrying a black plastic bag. The police officers chased him and he threw away the bag, which was recovered. When he was caught he admitted it was his and that he had burgled a medical clinic in the building. He took the police officers back to the clinic and, when he was searched, a sum of $816 was found on him. In the black plastic bag were found various house breaking implements: a screwdriver, a torch and some gloves. Later the applicants made a statement admitting the offence and also two other burglaries, one of a hospital canteen when $1,000 and 50 packets of cigarettes were taken and another of a clinic when $3, 000 in cash was lost.

6. The applicant is a married man with two children aged 6 and 2 years but is separated from his wife. He is himself aged 42. The reason for the delay in this matter was that the applicant was granted bail when first brought before the Court and he then absconded. The District Judge was not told how the applicant came to be re-arrested but it would seem he did not surrender himself as that would have been a mitigating factor.

7. The judge did however quite properly call for a Social Welfare report as to the circumstances of the applicant's children. This disclosed that his family are looking after them. The family in this case consists of his paternal grandparents plus five of the applicant's brothers, all of whom share a hut in Tuen Mun. The grandfather was in face granted custody of the children by the High Court order in June 1987. They enjoy a simple life but clearly are well cared for.

8. The applicant has a previous conviction for robbery for which he was sentenced to 8 years' imprisonment in 1973.

9. The offence to which the applicant pleaded guilty was one of burglary by night of commercial premises. He was alone and unarmed. The premises were unoccupied. $665 was stolen, which was recovered. The other offences were similar, though the sums of money and other property was higher. The total amount for the three charges was about $5,000.

10. In his succinct reasons for sentence the District Judge said that he thought a sentence of 4 years was correct as a starting point which he reduced by 9 months in respect of the plea of guilty.

11. We have been referred to various authorities on sentences for burglary, all of which are of course helpful, but there are in these offences a wide variety of circumstances which obviously call for different sentences, but fundamentally sentences for burglary do run between 2 and 4 years. As was held in the case of Mo Kwong Sang⁽²⁾ the starting point for an offence of armed robbery is 5 years, so in an offence in which violence to the person is not involved, the basis must be substantially less than that.

12. Here we feel that the District Judge was not correct in taking a starting point of 4 years and it should have been considerably less than that. For one offence of simple burglary of this sort a sentence of 2½ years would have been appropriate and with the other two offences which were taken into consideration that should have been increased to 3 years. There should be from that a reduction of 9 months, taking into account the plea of guilty, albeit in the face of strong evidence, and the applicant's family circumstances. This then gives a sentence of 2 years and 3 months.

13. The application is granted. We treat this hearing as the appeal and the sentence will be reduced accordingly.

(1) Criminal Appeal 448/78

(2) (1981) H.K.L.R. 610