HKSAR v. YU KING MING

CACC198/2003

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO.198 OF 2003

(ON APPEAL FROM DCCC NO.1321 OF 2002)

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J U D G M E N T

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

1. The applicant now aged 55 seeks to renew her application for leave to appeal her sentence after the refusal of the single judge to grant leave.

2. The applicant was convicted after trial in the District Court before Deputy Judge Candy of an offence of burglary, contrary to sections 11(1)(a) and (4) of the Theft Ordinance, Cap.210. She was sentenced to two years' imprisonment.

3. The facts of the case as found by the trial judge were that the applicant was a member of a gang of five persons who had broken into commercial premises in Nathan Road in Kowloon and stolen some $16,000 cash. The other members of the group had earlier pleaded guilty to the offence. The burglary itself was a quite professional operation involving the transportation of bulky burglary equipment to the scene by a small goods van, the use of bolt cutters to gain access to the premises and the return of those bolt cutters to the van by trolley.

4. The role of the applicant was to drive the van. She had been seen before the actual break in to change its registration plates and was also seen to have parked the van in different locations near the victimised premises so as to facilitate the unloading and loading of equipment used for the purpose of the burglary.

5. She was in fact apprehended by police as the burglary tools were being placed back in the van by another defendant. In the van were found inter alia three crow-bars, a bolt cutter, a small axe and a hand saw and blades. She also subsequently admitted she was responsible for conveying any stolen property obtained.

6. She seeks to appeal her two years' sentence on the basis of it being too severe. She particularly complains that her fellow gang members received sentences of only 18 months' imprisonment.

7. But that complaint overlooks the simple fact that all of the other four defendants in the case pleaded guilty. That meant that the starting point of sentence of two years and six months' imprisonment taken in respect of each of them was properly reduced (after the judge presumably took into account other mitigating factors) to 18 months' imprisonment.

8. The applicant's own sentence of two years' imprisonment after trial in our view was lenient. She had a clear record as the sole substantial mitigating factor and that was taken into account.

9. Given the reasonably professional and organised nature of the burglary and the significant role played by the applicant in our view the complaint by the applicant that her sentence was too severe is completely without merit.

10. The application for leave to appeal against sentence is dismissed.