HKSAR v. WAN HO KIT LAWENCE

CACC479/2000

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO.479 OF 2000

(On appeal from District Court Criminal Case No.909 of 2000)

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J U D G M E N T

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Suffiad J (giving the judgment of the court) :

1. The applicant pleaded guilty before a district judge on 14 November 2000 to one count of burglary. The facts of the case to which the applicant pleaded guilty are as follows.

2. Shortly before 3 p.m. on 4 August 2000, the female victim aged 63 returned to her home on the 15th floor of a building in Shek Lei Estate. She closed the iron grille of her home when she entered without locking it and after putting her handbag on a chair went straight to the toilet. She came out of the toilet to find the applicant in her living room holding her handbag. The applicant then fled through the main door of the victim's home towards the staircase. The victim made a report to the police and two constables attended the scene where they intercepted the applicant at the staircase of the building. When intercepted the applicant was still holding the handbag of the victim. Under caution the applicant admitted the burglary.

3. In sentencing the applicant, the learned district judge took as a starting point four years' imprisonment and reduced it by the usual one-third to take account of the plea of guilty tendered at the earliest opportunity thereby sentencing the applicant to a term of imprisonment for two years and eight months. The applicant now seeks leave of this court to appeal against that sentence on two grounds.

4. The first ground of appeal is that the learned district judge erred in principle in using a starting point of four years because of the criminal record of the applicant. Reliance has been sought on a number of cases by counsel for the applicant to the effect that the starting point for burglary of domestic premises is one of three years imprisonment after trial.

5. Counsel for the applicant submits that the learned district judge was correct in recognizing three years to be the starting point for such offence but then fell into error when he went on to use a starting point of four years because the applicant was not a first offender. In so submitting, he relies on several decisions. First, the case of R v. Vy Van Kien and Pham Van Hoa [1991] 1 HKLR 422, secondly, the decision of Power JA in the case of R v. Chan Ka Choi [1998] 1 HKLR 530. The principle of law enunciated in both cases is a basic principle, namely that a defendant, after he is found guilty or pleads guilty, is to be sentenced for the offence for which he is charged and not for his previous criminal record.

6. However, there is also a wealth of other cases well-recognized by these courts, which decide that where a court is dealing with a persistent offender, it is well entitled to adopt a higher starting point or pass a higher sentence than would otherwise be the case so as to have a greater deterrent effect and to protect the public from his persistent offending.

7. Indeed, it is accepted by counsel for the applicant, that it would not be wrong of the learned district judge to have made "a slight upward adjustment" of the sentence due to the applicant's previous record but that the one year upward adjustment was manifestly excessive and wrong in principle.

8. In the present case, the applicant has a criminal record. He has appeared in courts on 13 different occasions since 1984 with a total of 47 previous convictions. Twenty-six of these were for burglaries, 10 for theft, two attempted theft and one for handling stolen goods. Six of his last seven convictions were burglary offences. There can be no doubt that he is a persistent offender in so far as burglaries are concerned. Moreover, in all the cases cited by counsel for the applicant, the three years starting point for burglary of domestic premises is expressly stated to be for a first offender. The applicant, with his criminal record, cannot be expected to be treated in the same way as a first offender. This was a matter which the learned district judge well recognized when he was sentencing the applicant.

9. With such a background as shown by the applicant's previous criminal record, it is difficult to see how the learned district judge could be faulted for the sentence or the starting point adopted by him in sentencing this applicant. Indeed had he adopted any lesser sentence, he would be failing in his duty to protect the public from such an offender as the applicant. It is also apparent that all the previous sentences passed on the applicant for burglary offences did not have sufficient deterrent effect on him. There is no merit in the first ground of appeal.

10. A second ground of appeal contained in the Perfected Grounds of Appeal had not been pursued by counsel for the applicant. Nothing in the learned judge's Reasons for Sentence even remotely suggest that the learned district judge was at fault either in principle or in being manifestly excessive.

11. Accordingly leave is refused for this appeal against sentence and the appeal is dismissed.