R. v. LAM WING KAY

IN THE COURT OF APPEAL

1996, No 295
(Criminal)

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J U D G M E N T

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Bokhary, J.A.:

1. This case comes to us from the District Court where three men appeared before HH Judge Brazier.

2. The applicant, a man in his late 30's, was the 3rd accused.

3. Six charges were contained in the Amended Charge Sheet. We are only concerned with three of those charges, namely the 1st, 2nd and 4th charges, each of theft.

4. Those three charges were against all three accused including this applicant. He did not face the other three charges.

5. On April 25 this year, the judge convicted the applicant on the three charges which he faced.

6. Having sent for and considered a background report on the applicant, the judge passed sentence on him on the 9th of the following month.

7. The applicant was sentenced to a total of 15 months' imprisonment. That total was reached by way of consecutive terms of nine months, three months and three months on the 1st, 2nd and 4th charges respectively.

8. We now have before us the applicant's application for leave to appeal against sentence.

9. This is what he has written in his Notice of Application:

" I am Lam Wing Kay, No. 163973, aged 40. The reasons for appeal for commutation are: my family members are in Mainland China. My wife Wong Sau Mei did not have a job. My son Lam Kwong Chun is aged 8 and my daughter Lam Wai Yan, aged 3, was born in Hong Kong. My father Lam Ka Muk is aged 79 and my mother Tong Chi Tai, aged 76, suffers from heart disease and coronary disease. She is constantly on medication and has a difficult livelihood. All the living expenses depended on my employment.

I therefore apply for an appeal for commutation"

10. Under each charge which he faced, the applicant was charged, together with his two co-accused, with stealing plywood from a construction site.

11. Uner the 1st, 2nd and 4th charges respectively it was: 150 pieces from a Stonecutters' Island site on September 9 last year; six boxes from a Kwai Chung site on the 13th of the same month; and four blocks at a Sheung Shui site on the 19th of the following month.

12. In passing sentence, the judge began by saying this to the three accused.

" I have listened to what your defence counsel have said on your behalves. I have read the reports, which are generally good. These are serious offences; they are prevalent offences and as such, deterrent sentences are called for. Further there is a substantial quantity of goods involved and substantial value.

However, in your favour, I do accept that you have clear records and good reports. I also accept you were not the principal organisers, or give you the benefit that you were not the principal organisers of these thefts, or the principal beneficiaries. If I thought you had been the sentence would be a factor of three times higher. I just find you were willing participants for a relatively small reward. I also take into account the totality principle.

If you had pleaded guilty you would, of course, have received a further one-third reduction, but you did not."

13. It is possible that some of the things which the judge said about a deterrent sentence were a bit on the strong side. But the net result of his approach is that he did take a fairly benign view of the involvment of the men before him. And really the sentences which he passed were, if anything, on the lenient side. The applicant has informed us that his difficult family circumstances had been placed before the judge; and there can no doubt the judge would have considered them with care.

14. It is not for us to make light of other people's difficulties; and no doubt the applicant's background is not an easy one. The impact on his family of his incarceration is undoubtedly very great and very unfortunate.

15. But at the end of the day, it has to be said in all honesty that there are a lot of people who come from backgrounds just as difficult and sometimes a lot more difficult but who do not commit crime.

16. It seems to us that this applicant has already been extended as much leniency as it was at all possible to extend to him and that no further leniency can justifiably be extended now.

17. In these circumstances, this application must be, and is, dismissed.