HKSAR v. TAO CHI KIN

CACC 38/2005

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 38 OF 2005

(ON APPEAL FROM DCCC 799 OF 2004)

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J U D G M E N T

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V. Bokhary J (giving judgment of the Court):

1.  This Applicant is a man in his late 30’s.  He was convicted after trial before Her Honour Judge Toh in the District Court on two charges.  One was of criminal intimidation.  The other was of criminal damage.

2.  Both offences were committed on the same occasion.  The time was shortly after midnight on 7 April 2004.  The place was a seventh floor flat in Yuen Long.  Climbing up a scaffolding, the Applicant damaged the window lattice of the flat and stepped into the flat.  He was seen by the occupant, a Mr Sit.  And he threatened Mr Sit.  That was the criminal intimidation.  The breaking of the window lattice was the criminal damage.

3.  Judge Toh passed a two-year sentence for the criminal intimidation and a one-year sentence for the criminal damage.  Half of the one-year sentence was made consecutive to the two-year sentence.  So the Applicant received a total sentence of 2½ years’ imprisonment.

4.  The Applicant’s application for leave to appeal against sentence was refused by the single judge, Stock JA.  Despite his having been duly warned of a possible loss of time, the Applicant now renews his leave application before us.

5.  Having heard him, we find his leave application wholly without merit.  It is dismissed. 

[Applicant heard on loss of time]

6.  He has been warned of a possible loss of time, and we are satisfied that he has had a proper opportunity to say what he can on the matter of a loss of time.  In our view, there should be an order for loss of time.  We order, pursuant to section 83W of the Criminal Procedure Ordinance, Cap. 221, that 2 months of the time the Applicant has spent in custody pending these proceedings shall not count towards the sentence he is now serving.