HKSAR v. HO SHUN HIN

CACC 615/2002

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 615 OF 2002

(ON APPEAL FROM DCCC 1039 OF 2002)

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J U D G M E N T

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Ma JA (giving the judgment of the Court):

1. On 19 November 2002, the Applicant was convicted on his plea of charges of burglary and assault with intent to resist lawful apprehension. On the same day, he was sentenced to 24 months for the burglary and 12 months for the assault charge. 10 months of the sentence for the assault charge was ordered to run consecutively with the sentence for the burglary charge, therefore making a total sentence of 34 months. These sentences took into account the Applicant's guilty plea and the discount to be allowed for it.

2. The facts were these. On 29 August 2002, the Applicant burgled a flat in Tin Shui Wai. While he was still in the flat, the occupants of the flat (a man and his wife) returned home. When the man entered the flat, he noticed the Applicant. In attempting to apprehend him, the man struggled with the Applicant and was assaulted by him. He sustained slight abrasions on his elbow and scratches on his chest. At the time of this incident, the Applicant had with him a crowbar.

3. The learned judge took a starting point for the burglary of 3 years. For the assault, he took as a starting point 18 months. Both were reduced by a third to reflect the guilty plea.

4. Mr Paul Leung, who appears for the Applicant, accepts that the sentence for the burglary was appropriate and cannot be disturbed. However, he submits that the starting point for the assault charge was far too high. In the present case, he submitted that there were no aggravating features and, as the learned judge remarked, it was to the Applicant's credit that he did not use the crowbar. On the basis of some authorities cited to us, namely R v Fung Chi sang, unreported, MA 418/1994, 17 June 1994, Leonard J and R v Liu Hoi On, unreported, MA 1279/1996, 20 December 1996, Leonard J, Mr Leung said that the usual sentence for this type of assault was several weeks.

5. Mr Madigan, for the Secretary for Justice, in his written submissions has been quite fair in accepting to a certain extent that the starting point was excessive. He has repeated this position today. However, he submitted that having regard to the Applicant's previous record (17 previous convictions with 4 similar), the learned judge's sentence might not be manifestly excessive although this morning he implicitly accepted that this might be so.

6. We are grateful to both counsel. In our view, the learned judge took too high a starting point for the assault charge. Given the circumstances of the incident (in the privacy of a home) and the Applicant's previous record, but making allowances for the fact that there were no other aggravating features, we are of the view that the appropriate starting point was 4 1/2 months. With a guilty plea, this is reduced to 3 months.

7. As to whether the sentence should be concurrent with or consecutive to the sentence for the burglary charge, we are of the view that the sentence should be consecutive. Although the assault took place in the course of the burglary, it was wholly distinct from it.

8. Accordingly, we allow the application for leave to appeal against sentence and, treating the present hearing as the hearing of the appeal itself, we allow the appeal and substitute the sentence imposed by the learned judge for the assault charge with a sentence of 3 months, taking in account the guilty plea. This sentence is to run consecutively to the 24-month sentence for the burglary charge. In all, therefore, the Applicant will have to serve 27 months.