THE QUEEN v. FU KWOK LEUNG

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JUDGMENT

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McMullin, V.-P. :

1. The applicant, FU Kwok-leung, was convicted after trial in the District Court upon a single count of burglary. He received a sentence of 3 1/2years' imprisonment. He now applies for leave to appeal against that sentence.

2. The facts were that on the 11th of February two police officers on patrol beat found themselves in the vicinity of a rear lane off Tung Choi Street in Kowloon. As they drew near a caf?known as Hoi Sing Caf?they saw two men running from the rear door of the cafèin the direction of Sai Yeung Choi Street. They gave chase and the two men separated.  P.C. Cheung pursued one of the men who, on his emergence from the premises, was seen to be holding a metal object in his hand. As he chased this man the latter threw this object to the ground and it was later recovered.  The police constable chased him for a certain distance and, according to him, was a short distance behind him at all times. Eventually the fugitive more or less fell into the hands of another police officer who was on duty further along the route being taken in the course of the chase.

3. Upon inspection it was discovered that the rear door of the caf?had been forced open and it was the evidence of the officers that the men they had seen bad emerged from within. The offence of bruglary was therefore complete.

4. In passing sentence the District Judge noted the age of the defendant, 23 years, and took account of matters of mitigation put before him. It was said that the appellant was not a man of violence and that nothing in fact had been stolen. He was represented as a good son who sent money regularly to his family in China.

5. The record of the defendant was produced before the court. He had been put on probation in 1981 for an offence of attempted theft and on the 13th of March 1984 he received a sentence of 18 months for burglary.

6. It appears from his own reasons in support of his application  - and we have no reason to doubt that this is other than accurate - that he was about 2 months out of prison, having served that sentence, when the present offence took place.

7. Having recited the matters of mitigation the judge said,

"I believe that the only appropriate sentence is a custodial one. I cannot ignore the fact that he was only recently convicted of a similar offence."

Mr. Ramanathan, who appears for the applicant upon this application, makes it his single ground of appeal that the judge has fallen into error in using that form of words and he enlists the principle, referred to in the case of The Queen v. CHAN Hon-kwung⁽¹⁾ that recidivism by itself should not be regarded as an aggravating factor. Whatever may be said about the implications of that principle we are satisfied that it is not one that applies in the present case, and that the judge was not in fact sentencing this applicant upon his previous record. We understand - and it would seem the most sensible interpretation of his words - that in saying what he said he was simply highlighting the fact that this applicant had fallen into crime of exactly the same kind so very soon after he had served his previous sentence. That in itself was properly to be regarded as a factor aggravation.

8. Mr. Ramanathan however points out that this was not a burglary carried out in domestic premises. He points out correctly that the sentence of 3 1/2 years is at the top most end of the scale.

9. Notwithstanding the factor of the applicant having recently fallen again into error, which as we say was something the judge properly took into account, we are satisfied that the sentence imposed was in all the circumstances too high within the range of sentences normally imposed in respect of offences of this kind not carried out in domestic premises.

10. We think the proper sentence in the present case would have been one of 2 1/2years only.   We therefore treat the hearing of this application as the hearing of the appeal. We allow the appeal to the extent that for the sentence of 3 1/2years we substitute one of 2 1/2 years only.

(1) Cr. App. No. 218 of 1984