HKSAR v. CHIU WING LOK

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

1998, No. 142
(Criminal)

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J U D G M E N T

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

1. The applicant pleaded guilty in the District Court to one charge of burglary, two charges of theft and one charge of remaining in Hong Kong without the authority of the Director of Immigration after having landed unlawfully in Hong Kong. The applicant had entered Hong Kong illegally. After he entered Hong Kong, he stole some items of clothing outside two separate domestic premises. He then broke into a third one in the same area and stole some coins. The items stolen were of relatively little value. He fell asleep in that house and was caught when the house owner returned. He was sentenced to 2 years and 8 months imprisonment on the burglary charge, 12 months concurrent on each of the theft charges and 15 months consecutive on the immigration charge, making a total sentence of 3 years and 11 months imprisonment. He now applies for leave to appeal against sentence.

2. The applicant was 23 years old and at the time of these offences had a clear record.

3. In sentencing the applicant, Judge Hawkes said this:

"The normal starting point of sentence for burglary offences involving domestic premises is 3 years imprisonment. In my view, the starting point for the sentence for each of the theft charges should be 12 months' imprisonment. The usual sentence for the immigration charge is 15 months imprisonment. Bearing in mind the totality principle, it seems to me that the overall starting point for sentence for the burglary and theft charges should be 4 years imprisonment."

4. The grounds of appeal complain that the overall starting point of 4 years for the three charges of burglary and theft is manifestly excessive and the total sentence of 3 years and 11 months for all four charges is therefore also manifestly excessive.

5. No doubt the District Judge was correct when he adopted 3 years as the starting point for the burglary charge. However, we are of the opinion that having regard to the total criminality of the burglary and the theft charges, the total sentence of 4 years for these three charges is manifestly excessive.

6. We consider a total sentence of 3 years should have been adopted as the starting point for these three charges. Giving 1/3 discount for the guilty plea, the sentence should have been 2 years for these charges.

7. As regards the 15 months consecutive sentence for the immigration offence, that is the appropriate sentence and we have no reason to disturb it.

8. We therefore grant the application for leave to appeal and we substitute a sentence of 2 years imprisonment for the burglary charge, 6 months for each of

the theft charges concurrent making a total sentence of 3 years and 3 months imprisonment.