HKSAR v. PO YAN-CHUEN

CACC 232/2001

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 232 OF 2001

(ON APPEAL FROM DCCC 132 OF 2001)

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J U D G M E N T

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Hon Mayo VP (giving the judgment of the Court):

1. The applicant is seeking leave to appeal against his sentence of three years' imprisonment which was imposed upon him after a trial in the District Court before Judge Yung when he was convicted of the offence of attempted burglary.

2. The facts were simple and straightforward.

3. According to the prosecution case in the early hours of the morning of 5 December 2000 a lady who was the occupier of a house in the Europa Garden Complex at Lok Ma Chau went to close one of the windows. She saw a man outside. Her suspicions were aroused and she made a report to the security officer of the complex. Two officers attended at the site and saw a man attempting to hide. The man then ran away. The security officers made a report to the police who conducted a search in the vicinity. They found a man hiding in some bushes who it transpired was the applicant. They apprehended him and cautioned him. In reply he said "Ah sir, my property became a negative asset and I don't have enough money for paying the mortgage loan so I turn to the way of burglary. Give me a chance."

4. Later he made a cautioned statement which he wrote himself and made a number admissions.

5. Mr Petrus Chan represented the applicant on this application.

6. The perfected ground of appeal which has been advanced is that the Judge failed to consider other sentencing alternatives.

7. More specifically the Judge had not considered imposing a community service order notwithstanding the fact that a probation officer had expressed the opinion that such an order would be appropriate in a community service suitability report.

8. In this connection it needs to be stated that the Judge only agreed to request such a report at the instigation of counsel representing the applicant.

9. It has to be said that if it was not within the contemplation of the Judge to consider imposing a community service order no useful purpose was achieved by obtaining the report. That being the case it should not have been asked for.

10. Mr Petrus Chan placed great reliance upon HKSAR v Chow Chak-man [1999] 2 HKC 659 where the Court of Appeal held that the imposition of a community service order was an appropriate sentence for a defendant who had been convicted in respect of the burglary of commercial premises. The circumstances of that case were exceptional.

11. The main reason why the court held that this was an appropriate sentence was that the Judge had himself called for a community service suitability report. This had been favourable to the defendant. In these circumstances the defendant had a justifiable expectation that in the event of the report being favourable to him the court would make such an order.

12. It was however difficult to see why the Judge had in that case seen fit to request the report. Furthermore it was most surprising that a report should have ever been considered where the defendant had been convicted of burglary.

13. Be that as it may what needs to be emphasised is that it would only be in a most exceptional case that it would be appropriate to impose a community service order for the offence of burglary or attempted burglary.

14. There were no exceptional circumstances in the present case.

15. Although the applicant was of previous good character this was a run of the mill attempted burglary. Had the applicant not been surprised there seems to be no doubt that he would have completed the offence.

16. On the facts of this case no reduction is called for by virtue of the offence being an attempted offence. The lady in the premises was alarmed by the applicant's activities. Three years is the normal sentence passed after trial in a case of this nature and it cannot be said that the sentence which was imposed was either manifestly excessive or wrong in principle.

17. The application for leave to appeal against sentence is accordingly dismissed.