HKSAR v. TONG TEUI SHING

CACC409/2002

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 409 OF 2002

(ON APPEAL FROM DCCC 531 OF 2002)

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J U D G M E N T

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

1. The applicant was convicted of one charge of burglary on his own plea before District Judge Christie on 24 July 2002 and was sentenced on the same day to two years' imprisonment consecutive to a period of two years' imprisonment he was then serving for another burglary. He now seeks leave to appeal that sentence.

2. The applicant came to Hong Kong from the Mainland on a seven-day two-way permit on 5 November 2001. At about 2:15 a.m., on 16 November 2001, he broke open the iron grille to a window of a flat on the 4th floor of a building in Chai Wan and stole from the premises the property set out in the Charge and valued at about $6,000. The resident of the flat slept through the burglary. Fingerprints were lifted from the scene.

3. On 18 November 2001, he committed a second burglary in domestic premises at Stanley. He was arrested soon after and charged with that second offence, and was convicted of it on his own plea on 31 January 2002. He was sentenced in respect of that matter to two years' imprisonment. As a result of his arrest in respect of that offence, his fingerprints were matched with those found in the flat in Chai Wai and he was charged with this offence.

4. No issue is taken with the sentence of two years' imprisonment imposed in respect of the conviction.

5. Having arrived at that sentence, the District Judge considered the totality of sentence to be imposed given that the appellant was already serving a sentence of imprisonment. In considering that principle he said :

" These two sentences added together are 4 years' imprisonment and the real question in this case is whether the totality of the sentences should be reduced. In the normal course of events, two burglaries occurring close together, the sentences will be made concurrent to some extent to give effect the principle of totality, that is that the total of sentences must not be unreasonably high."

He then went on to say :

"I am not minded to reduce the total of the sentences in this case because it is apparent that the defendant came to Hong Kong for the purpose of committing crime. ..."

6. Mr Percy argues that the judge was wrong to impose a wholly consecutive sentence, and that in the normal course where two offences of a similar nature that took place on separate occasions are heard by the same judge whilst a consecutive sentence is appropriate, a partial consecutive sentence would usually be imposed.

7. We agree. Had the applicant appeared before a judge who heard his plea on both charges on the same occasion, we are of the view that in the normal course of events the sentences would be made concurrent to some extent to give effect to the principle of totality. To reflect that totality the sentence in respect of both of these offences should be a period of three years.

8. The application for leave to appeal is granted, we treat this hearing as the appeal, and the appeal is allowed to the extent that the sentence in respect of this matter will commence one year after the commencement of the sentence in DCCC1186/2001 making a total sentence of three years.