HKSAR v. PANG WAI KEUNG

CACC 460/2005

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

criminal APPEAL NO. 460 OF 2005

(ON APPEAL FROM DCCC NO. 944 of 2005)

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J U D G M E N T

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Stuart-Moore, Ag CJHC (giving the judgment of the Court):

1.  On 18 October 2005, the applicant received a two-year sentence from Judge Chua in the District Court, after pleading guilty to a well-planned and professional burglary carried out on or about 9 April 2003 at commercial premises.

2.  The applicant’s co-defendant (D1), who also pleaded guilty to the burglary, received the same sentence.  However, because D1 had been sentenced in 2003 to 7 years and 8 months’ imprisonment for six burglaries, only 4 months of his sentence for this burglary was ordered to run consecutively.

3.  The applicant, on the other hand, was sentenced on the 10 March 2004 to 2½ years’ imprisonment after trial for a burglary committed on 25 August 2003, 4½ months after the present offence.  However, at the time of sentencing in the present case, he had already served his earlier sentence.

4.  The question therefore remains as to whether some form of reduction, as a matter of principle, ought to have been made to the applicant’s present sentence to take into account the fact that some degree of concurrent sentencing would have been probable if the two burglaries committed in 2003 had appeared on one charge sheet at the same time.

5.  In this sense, the totality principle, which might have reduced the applicant’s sentence by a few months, does not seem to have been considered by the judge.  On this basis, leave to appeal against sentence is granted.

6.  However, as the applicant may well be the author of his own misfortune in that he seems to have kept his guilty secret to himself, he should be aware that the granting of leave does not necessarily mean that his sentence will be reduced when his appeal is heard.

7.  The respondent has undertaken to produce a schedule setting out the precise dates of all relevant events for the purposes of the appeal.