HKSAR v. CHOW CHU TAK

CACC 572/98

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 572 OF 1998

(ON APPEAL FROM DCCC 670 OF 1998)

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J U D G M E N T

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

1. On 3 November 1998, the applicant was convicted after trial before Her Honour Judge Poon in the District Court of one charge of burglary. He was sentenced to 2 1/2 years' imprisonment. He now seeks leave to appeal against the sentence out of time.

2. The prosecution case is this. PW1 who worked in a company called GFI Company Limited, situated at Room 604, Block A, New Mandarin Plaza, No.14, Science Museum Road, Kowloon. On the day in question, that is 24 March 1998, he went to work at about 8:30 a.m. Before he started work, he placed his bag which contained, among other things, his mobile phone underneath his desk. He went out for lunch at about 1:00 p.m., leaving his bag with the mobile phone in the office. He returned after lunch at about 2:00 p.m. and found his mobile phone missing.

3. At about 1:45 p.m. on the same day, two police officers, whilst on patrol on the 12th floor of a building nearby, saw the applicant and another man walk hurriedly to the rear staircase from the corridor. They stopped and searched them. A mobile phone was found on the applicant who claimed that it had been given to him by a friend for him to sell it in China. The police was able to trace the true owner of the mobile phone from the memory function. The mobile phone was later shown to PW1 who identified it to be his.

4. The applicant applied to this Court for leave to appeal against conviction which was heard and dismissed on 19 May 1999 but he did not seek leave to appeal against his sentence on that occasion. In a written statement dated 25 May 1999, the applicant stated :

" I, CHOW Chu-tak No.39619, further appeal against sentence. Last time, I applied for appeal and the conviction was upheld. In addition to that, I am not familiar with the law. I find a sentence of two and a half years too heavy. After consideration once again, I decided to appeal against sentence. I apologize for the late appeal due to the twists and turns. Thank you."

5. Before us to-day, he pleaded for leniency. He told us that his wife was suffering from head illness and is receiving medical treatment. The wife is in Court to plead for leniency on his behalf and produces some medical chits and a medical certificate in her name. A letter written by the two daughters is read out to us, again pleading for the Court to show mercy.

6. The applicant says that he is the sole breadwinner of the family, and now that he is in prison, the family suffers financial difficulties, and he is in dire circumstances. He expresses remorse for what he had done. He asks the Court to allow his appeal so that he can be released early to look after his family which consists of an aged mother, his wife and two young daughters. We have considered the various documents which are placed before us. We have also considered the family circumstances of the applicant and we would like to say that we are not unsympathetic. But that alone is not sufficient for us to interfere with what is a proper sentence.

7. The applicant also brings to our attention a recent case in the District Court. In that case, Lui Bing Ching pleaded guilty to 14 charges of burglary of computer equipments to the value of more than $1 million. Here, the value of the mobile phone which the applicant had stolen was, according to the evidence, about $2,000. As against that, it has to be said that Lui Bing Ching pleaded guilty to all the charges before the Court, and was therefore entitled to a substantial discount. If he had not pleaded guilty and was found guilty after trial, he would certainly be given a sentence in the region of 4 1/2 years. But here, the applicant pleaded not guilty and was convicted after trial before the judge. The judge, very properly, did not consider that he was entitled to any discount.

8. The question that we have to decide is whether the starting point of 2 1/2 years adopted by the judge is correct in this case. The judge in passing sentence also found that there were no mitigating factors to justify the imposition of a lighter sentence, either by way of discount or by way of reduction.

9. Mr Sean, who appears for the Government of the Hong Kong Special Administrative Region, had been most helpful to refer us to a line of previous decisions of this Court in his skeleton submission. These cases deal with the starting point for burglaries committed in non-domestic premises. In the case of R. v. Fu Kwok Leung Crim. App. No.246 of 1985 (unreported) which concerns a burglary in non-domestic premises where nothing was stolen. The defendant there was convicted after trial. McMullin, V-P considered that the proper sentence should be one of 2 1/2 years.

10. Another case to which Mr Sean refers in his skeleton submission is R. v. Tang Ping Crim. App. No.93 of 1988 (unreported) where this Court held that the starting point for one count of simple burglary in commercial premises should be 2 1/2 years. In that case, the burglary was committed at night in commercial premises which was not occupied at the time. The defendant was alone and unarmed. The money involved was less than $1,000. In delivering the judgment of the Court, Penlington, JA said at page 4 :

"Here we feel that the District Judge was not correct in taking a starting point of 4 years and it should have been considerably less than that. For one offence of simple burglary of this sort a sentence of 2 1/2 years would have been appropriate and with the other two offences which were taken into consideration that should have been increased to 3 years. There should be from that a reduction of 9 months, taking into account the plea of guilty, albeit in the face of strong evidence, and the applicant's family circumstances. This then gives a sentence of 2 years and 3 months."

11. The applicant pleaded not guilty and was convicted after trial. A sentence of 2 1/2 years imprisonment is, in our view, entirely warranted.

12. In all the circumstances, we are satisfied that the sentence is neither manifestly excessive nor wrong in principle. The application for leave to appeal against sentence out of time is accordingly refused.