THE QUEEN v. LAU SIU KWONG AND OTHERS

IN THE COURT OF APPEAL

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J U D G M E N T

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Mayo J. delivered the judgment of the Court.

1. Three of the charges with which the present applications are concerned are in respect of burglaries and one in respect of handling stolen goods. Charges l, 2 and 4 relate to the burglaries and charge 3 to the handling.

2. The Court did not proceed on the first and second charges. The other charges were heard by Judge Chua and the Applicants were convicted and sentenced on 14th December 1987.

3. The main charge was charge 4. The 1st Applicant to the 4th Applicant were convicted of this charge.

4. The police laid an ambush at 7 a.m. on the morning of 2nd July 1987 outside a building called Micro Electronic Company Building at Cheung Sha wan Road Shamshuipo.

5. Essentially it was the evidence of the police officers that they saw a white van DR 122 stationary outside the building. The 2nd Applicant who is the registered owner of the van was sitting in it.

6. They then saw three men pushing a green trolley which was loaded with a number of articles of what might conveniently be described as being of an electronic nature. The men approached the van and the 2nd Applicant alighted and assisted them in loading the articles into the van.

7. The police officers who were in plain clothes then came for and attempted to arrest the four men. A struggle ensued as the men attempted to escape.

8. Notwithstanding their efforts they were subdued and apprehended.

9. The owner of the factory premises at Micro Electronic Company Building gave evidence that his factory had been broken into and ransacked and that certain property had been removed.

10. There was also evidence that a power drill was found in the van and that forensic evidence linked the drill to the hole which had been drilled in the door at the entrance to the factory.

11. In the afternoon of the 2nd July a police party conducted a raid on a flat at 48 Portland Street, Kowloon. There was evidence that this flat was occupied by the 1st Applicant and 5th Applicant.

12. A substantial quantity of goods were found at the premises.

13. Some of the goods found were subsequently ascertained to have been the subject of the burglary which is referred to in the first charge.

14. Some more of the goods were found to relate to the burglary which is the subject to the second charge. The 2nd Applicant and the 4th Applicant were charged with this burglary.

15. The 1st Applicant and the 5th Applicant both applied this morning for adjournments so that their lawyers conducting could examine the notes of proceedings. These applications were granted.

16. The 2nd Applicant the 3rd Applicant and the 4th Applicant all abandoned their applications against conviction. We are therefore left only with the question of sentence.

17. Mr. Iu for the 2nd Applicant suggested that as he was only in charge of the get away van he should be treated more leniently. We can see no reason for this.

18. Mr. McCoy for the 3rd Applicant suggested that his client had substantial mitigating factors or features. In particular he referred to a serious injury to his client's right arm which rendered him to an extent unemployable. We regret that we do not see any reason to differentiate in the sentence which was passed on him and the sentence, which is passed on the others.

19. The 3rd Applicant was prepared to participate in this burglary notwithstanding his disability and we consider that his sentence should be the same as for the other men.

20. Mr. Bell did not say anything in particular about his client as regards mitigation.

21. All counsel submitted that 2½ years was the correct starting point for a burglary of non-domestic premises. They cited R v Fu Kwok Leung⁽¹⁾, Khan Noor Said⁽²⁾ and Tang Ping⁽³⁾ in support of it. We agree that this is the correct starting point and that Judge Chua should have adhered to that rather than imposing sentences of 3 years 2 months on each man. All the Applicants had a clear record. The applications for leave are granted and the sentences imposed are accordingly reduced to 21/2 years.

(1) C.A. 246/1985

(2) C.A. 548/1987

(3) Cr. App. 93/88