THE QUEEN v. MUI CHUEN

IN THE COURT OF APPEAL

1986, No. 562
(Criminal)

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J U D G M E N T

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Penlington, J.

1. This is an application for leave to appeal against sentence on some eleven charges, the first eight being burglaries and theft and the final one of going equipped for stealing. It is not necessary to go into the background of the case in any great detail except to say, as Mr. Murray has submitted to us, that the facts of the case were that the applicant and another man were found in the early hours of the morning in a courtyard and with them were various items which indicated that they were in the course of carrying out burglaries.

2. While of being questioned, however, the applicant admitted that he had in fact carried out a series of burglaries and thefts but of tho6e only one, a burglary, had been reported. The applicant, therefore, apart from the confessions that he made, was only faced with the one charge of going equipped for stealing, the evidence in respect to the other charges depending entirely on the confessions that he made. He pleaded guilty to all the offences and was sentenced in respect of the thefts and burglaries to 4½ years’ imprisonment for each, concurrent, and for going equipped for stealing to 9 months' imprisonment, also concurrent. The trial judge said that he had given a discount of a year for the pleas of guilty which means that he would have passed a sentence of 5½ years on a conviction after trial.

3. It is quite clear that the premises from which these items of no great value were taken - we are told by Crown Counsel in each case about $200 worth of electric cable - were not occupied and there was no evidence that they had actually been broken into. We agree with Mr Murray that the applicant is a man who is more of a social nuisance that of menace and, on that basis, we think that the sentences suggested by the trial judge of 5½ years' imprisonment after trial are manifestly excessive. Bearing in mind the guidelines in the case of Ho Chi-keung[1] which was decided almost 10 years ago, but does provide some help, the fact that although this applicant has previous convictions, he has not offended since 1977 and all the other factors which had been argued in mitigation, we feel that we should allow the application and treat this as the appeal which is allowed. The sentences in respect to charges 1 - 8 will be reduced to 2 years' imprisonment. The sentence on charge 11 will remain at 9 months. All sentences to be concurrent.

[1]  Criminal Appeal No. 783 of 1977