Secretary for Justice v. CHAN TSZ LUNG

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

1998, No. 4
(Application for Review)

-------------------------

----------------------

J U D G M E N T

----------------------

Mayo, J.A. (giving the judgment of the Court):

1. This is an application by the Secretary for Justice to review the sentences which were imposed upon the Respondent when he pleaded guilty to fifteen charges of burglary, contrary to s.11(1)(b) of the Theft Ordinance, Cap. 210 and one charge of possession of an offensive weapon, contrary to s.17 of the Summary Offences Ordinance, Cap. 228.

2. The sentencing Judge was Judge H.C. Wong. She imposed sentences of 16 months' imprisonment on each of the burglary charges and ordered that they should all be served concurrently and 6 months' imprisonment on the s.17 charge which she ordered to run consecutively, thus making a total sentence of 22 months.

3. The burglaries occurred over a period spanning from April 1997 to November 1997. The main target premises were schools and educational institutions. In two cases the victims were restaurants and in one case a food shop.

4. In most of cases the Respondent together with another man broke into the premises and obtained whatever cash or valuables they were able to find. In several cases the victim was burgled by these men on successive occasions.

5. So far as the s.17 offence was concerned the police found a 48 cm long machete at the Respondent's home when they conducted a search there in December 1997. On this occasion the Respondent said that the implement would have been used to chop anyone who "bothered" him.

6. The Respondent who was aged 24 at the time of the offences had numerous convictions for offences involving dishonesty. The Judge had before her a Probation Report which was not favourable to the Respondent.

7. Mr. Saw S.C., on behalf of The Secretary for Justice submitted that the total sentence imposed was manifestly inadequate and or wrong in principle.

8. On the authority of Attorney General v. LUI Kam-chi [1993] 1 HKC 215, he submitted that the correct sentence for a single burglary of non domestic premises was 2 1/2 years.

9. Subject to the totality principle consecutive sentences should have been imposed having regard to the fact that each offence was separate and discrete and overall the offences had been committed over a period of some months.

10. In arriving at an appropriate sentence it was necessary to have regard to the greater criminality manifested by repeated breaches of the law.

11. Mr. Finny Chan for the Respondent accepted that the sentences "tends to be towards the lenient side".

12. We have no doubt that the sentences which were imposed were manifestly inadequate. We consider that a starting point of 2 1/2 years' imprisonment was correct for each of these burglaries and that in principle at least one of the sentences should have been made consecutive. The Judge was however correct to sentence the Respondent to 6 months' imprisonment on the s.17 charge and to make it consecutive.

13. We consider that having regard to the totality principle the appropriate starting point for the burglaries should have been 5 years to which a further 9 months should be added for the s.17 offence.

14. The Respondent was however entitled to the usual one-third discount for his guilty plea. This means that the total sentence to be served should be 46 months. This would be achieved by a sentence of 1 year 8 months on the first two charges to be served consecutively. Sentences of 1 year 8 months on all the other burglary counts to be served concurrently with the sentence on charges one and two. The sentence of 6 months' imprisonment should remain unchanged and should be served consecutively to the other sentences on the s. 17 charge.

15. The review is successful to this extent and the burglary sentences originally imposed are quashed and will be substituted by the sentences which have been ordered.