HKSAR v. WONG WAI CHUNG

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

1997, No.383
(Criminal)

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J U D G M E N T

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Power, V.-P. (giving the judgment of the Court):

1. The applicant in this matter faced four charges: one of possession of dangerous drugs, one of theft and two of burglary.

2. The possession of dangerous drugs charge alleged that on 18th December 1996 inside the male public toilet, podium 4, the shopping arcade of the World Trade Centre, Gloucester Road, Causeway Bay, he had in his possession dangerous drugs, namely 0.14 gramme of a crystalline solid containing traces of methamphetamine hydrochloride.

3. The theft charge alleged that on an unknown day in December 1996, the same month as the first charge, he stole a computer passcard, the property of Unisys, a company which occupies premises on the 11th and 12th floors of the World Trade Centre.

4. The burglary charges, are particularized that on an unknown day in December, again the same month, he entered the premises of Unisys on the 11th floor (third charge) and the 12th floor (fourth charge) using the computer passcard, the subject of the second charge, to effect entry and stole therein. It was alleged that, from each floor, he stole a whole range of items - credit cards, membership cards, application cards, blood donation cards, Moneylink cards and so on. It seems clear that he took whatever was portable.

5. The applicant pleaded guilty to all charges before District Judge Lim and was sentenced to two months on the first charge, six months on the second charge and two years on each of the third and fourth charges. The sentences were ordered, except for the first charge, to be concurrent, which made a total of two years and two months.

6. The trial judge said when sentencing:

"The offences are serious ones. In my view they call for immediate custodial sentences. Although the burglaries were of commercial premises a large number of items property were taken and there were two burglaries. On the burglaries I take a starting point of 3 years imprisonment after trial on each count. On the theft count I take a starting point of 9 months after trial and on the possession of dangerous drugs I take a starting point of 3 months after trial.

I have listened to and considered mitigation advanced by counsel. I have noted his personal circumstances. In my view the only mitigating circumstances is his plead of guilty, albeit at a late steps(sic). Guilty pleas, even at a late stage should be encouraged. In passing sentence I will also take into account the principle of totality."

7. The applicant had, it appears, been living rough in the building and had, on an occasion some time in November, stolen the computer passcard which he used it to gain entry into the 11th and 12th floors.

8. Mr. Marray, who appears for him today, argues three grounds of appeal. In the first he submits that the judge erred in treating the burglaries as separate burglaries for the purpose of sentencing. He submits that the charges related to the premises of the same company on adjacent floors and that on the same evening access was obtained by the use of the same computer passcard. All of that is true. The judge was, however, entitled to take into account that two separate acts of burglary occurred, that he ransacked the premises on the 11th floor before turning to the 12th floor. There were different acts of entry in each case and, of course, more articles were stolen than would have been if only one act of burglary had occurred. In the circumstances, we do not consider that the starting point of three years that led eventually to concurrent sentences was in any way excessive. That deals also with Mr. Marray's second ground which was the judge erred in taking three years as the starting point.

9. The third ground is that the trial judge failed to give adequate consideration to the contents of the background report, to the applicant's clear record and to the applicant's personal circumstances at the time when he committed the offences. This has troubled us because quite clearly the applicant was in a disturbed state at the time when these offences occurred. He had left his job, abandoned his family and was living rough. Sight must not, however, be lost of the fact that he embarked upon serious criminal activity when he stole the computer passcard and then ransacked and stole from the offices of Unisys. We have considered the possibility that he could be placed upon probation but in the circumstances, given the seriousness of the charges, we reject that course.

10. We are satisfied that the sentences passed were merited given the seriousness of the offences and that there is no way in which we could properly interfere with them.

11. The application for leave to appeal against sentence must, therefore, be rejected.