R. v. LEUNG WING YU

IN THE COURT OF APPEAL

1996, No.706

(Criminal)

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J U D G M E N T

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Power, Ag. C.J. (giving the judgment of the Court):

1. The applicant faced two charges of burglary. He pleaded guilty and was sentenced by Judge Beeson in the District Court overall to imprisonment for 2½ years. He now seeks leave to appeal against that sentence.

2. The facts were that on the night of 29th August 1994, he stole goods and cash from two shops which were owned by his former employer ABC Paging Proprietory Ltd. From the first shop, in Amoy Plaza, he stole goods to the value of about $54,000 and cash in the amount of $18,872. It seems that he entered these premises by using a key which he must have retained from the time when he was employed by the victim company. From the second shop, in Tung Yan Street, he stole goods to the value of $26,000 and cash in the amount of $78,330.

3. The trial judge when sentencing noted that he was an ex-salesman of the company, that he had admitted that he and another man drove a hired car to commit the burglaries and that he had jumped police bail which was why the cases did not come on until 1996. The judge noted the previous convictions of the applicant - one of minor theft in 1985, one of managing a vice-establishment and one of reckless driving causing death. The judge went on:

"I am advised that the victim of the reckless driving, as such, was your girlfriend, and that it was because you were paying ex gratia compensation to the deceased's family and for the damage to the hire-purchase vehicle that you had to raise a loan which you were unable to repay, and that these offences resulted."

The judge noted that the applicant's father had died in 1995 and that he had an elder brother who was ill. The judge was being urged to take into account the plea of guilty and to make the sentences concurrent. She stated that he was entitled to a discount for plea but that she did not consider it should be as high as it would have been if a genuinely early plea had been offered in 1994. The judge was entitled to take that view. She took a starting point of 2½ years on each of the burglaries which she reduced to two years ordering that six months of the second sentence be consecutive to the period imposed on the first.

4. The applicant today has urged most of the matters that he urged before the judge, i.e. that he got into financial difficulties because he was compensating his girlfriend's family, that his father died in 1995 and that he has an aged mother. He urges further that we take into account that if his accomplice is apprehended he is willing to be a prosecution witness. We cannot give any weight to that suggestion. If circumstances do occur which lead to his giving evidence, then it will be a matter for the executive to give such clemency as it considers proper. He urges that the time gap between the offences was so small as to warrant the imposition of concurrent sentences. The trial judge clearly took this into account as only six months was made consecutive. She also took into account his plea. There is no force, we are satisfied, in the applicant's suggestion that the judge had intended to make the sentences concurrent but then did not carry out that intention. We are satisfied that she had in mind all of the relevant matters and that the sentences overall of 2½ years were proper ones. The application must be refused.