HKSAR v. SZETO MAN KEUNG

CACC621/98

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 621 OF 1998

(ON APPEAL FROM DCC NO. 809 OF 1998)

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J U D G M E N T

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Chan, CJHC (giving the judgment of the Court):

1. This is an application for leave to appeal against sentence out of time. The applicant pleaded guilty before the District Court to two counts of burglary and was sentenced to 2 years imprisonment on each count, both sentences to run concurrently with one another but consecutively to a sentence of 3 1/2 years which he is serving in connection with another case.

2. It would seem from his affirmation and his counsel's chronology that on 27 February 1998, in TWCC 493 of 1998, the applicant was brought before the Magistrate on two counts of burglary and one count of robbery. The two burglary counts were withdrawn on 14 April 1998. The remaining charge was amended to aggravated burglary and the applicant was tried for that in the District Court in DCC 403 of 1998. He was convicted and sentenced to 3 1/2 years which he is now serving. At a later stage, in TWCC 1862 of 1998, the applicant was charged again with the two burglaries which had been withdrawn. He was then brought before the District Court (in DCC 809 of 1998) on these two charges to which he pleaded guilty and for which he received concurrent sentences of 2 years imprisonment. It is these sentences which are now before us in this application.

3. The facts in this case are straightforward and not disputed. On 25 February 1998, the applicant burgled two units in a housing estate in Tsing Yi, the On Yuen House, one on the 26th floor and another on the 27th floor. While he was breaking into the unit on the 26th floor, a neighbour of the victim reported the matter to the police. When the police arrived, the applicant was trying to leave the housing estate having burgled the second unit. He was arrested. His jacket and part of the stolen properties were discovered on the 3rd floor and his shoeprints were found on the laundry rack at the unit on the 26th floor.

4. We should mention that the first case of aggravated burglary for which the applicant was sentenced to 3 1/2 years was committed in May 1987. In that case, he broke into a domestic flat, threatened the victim with a knife, tied up the victim and used some clothings to cover the victim's head. He was not arrested until 11 years later when he was held in connection with the burglaries in the present case. It should also be mentioned that there were both identification as well as fingerprint evidence against him in that case. However, he pleaded not guilty to that charge and was convicted after trial. His application for leave to appeal against sentence was dismissed by a differently constituted Court of Appeal on 23 December 1998. The Court of Appeal there held that the sentence of 3 1/2 years was not in any way wrong in principle or manifestly excessive in view of the circumstances of that case. The Court added that the total sentence of 5 1/2 years (taking into account the 2 years in respect of the present case) was not manifestly excessive either.

5. At that hearing before the Court of Appeal on 23 December 1998, the applicant was unrepresented. We now have the benefit of the submissions of counsel Mr Andy Hung on his behalf. Counsel submits that the judge in the present case should have approached the present case and the case of the aggravated burglary as one case. That was the approach recommended by the Court of Appeal in R. v. Tong Hoi Fung [1988] 1 HKLR 610. He argues that had the learned judge done so, he would have to consider and state the starting point for the two cases (involving altogether three burglaries), applying the principle of totality. Counsel further submits that if the judge had done so, the overall starting point for the two cases should have been 5 1/2 years. Since the applicant is required to serve a total of 5 1/2 years (i.e., 3 1/2 years for the aggravated burglary and 2 years for the two counts of burglary), no reduction had in effect been given to him. Hence, it is submitted that the sentence of 2 years is manifestly excessive. Counsel further argues that even if the learned judge is entitled not to adopt the approach in Tong Hoi Fung, he had not given sufficient consideration to the principle of totality.

6. The learned judge in the present case had, as can be seen in his Reasons for Sentence, considered the circumstances under which the two burglaries were committed. When he passed the sentence of 2 years, he was well aware of the sentence of 31/2 years in respect of the aggravated burglary and the principle of totality was very much on his mind. (That appears on pages 8 and 9.)

7. The two burglaries in the present case were committed in the same housing estate and one after the other. The starting point of 3 years and the ultimate sentence of 2 years would, in our view, appear to be on the low side and this was in fact accepted by counsel for the applicant. Since the aggravated burglary was committed 11 years ago, if the applicant had been arrested earlier, he would have been dealt with much earlier and any sentence which might have been passed would have been served by the time the two burglaries were committed. That being the case, the approach in Tong Hoi Fung might not have been all that appropriate. Yet, even applying that approach in that case and taking the three offences together into consideration, the overall aggravate would have been 7 1/2 years (i.e. 3 1/2 plus 2 plus 2 years) and applying the totality principle, bearing the mind the seriousness of the aggravated burglary, the fact that he did not plead guilty to that charge (and hence no discount would have been given) and the circumstances of the present case, we do not think the ultimate total sentence of 5 1/2 years would in any way be considered manifestly excessive. The trial judge in the present case had quite properly taken into account the sentence of 31/2 years the applicant was then serving when he passed the present sentence. We do not agree that the judge had not sufficiently considered the principle of totality.

8. For these reasons, we do not see any merit in the present application. It must be dismissed.