ATTORNEY GENERAL v. CHAU WAI MING

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J U D G M E N T

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Hon. Bokhary, J.:

1. The Attorney General, with leave, applies to this court under the provisions of s. 81A Criminal Procedure Ordinance to review the sentence passed upon the respondent.

2. The respondent had appeared before Judge C.B. Chan on a charge of possession of instrument fit for unlawful purpose, namely a screwdriver (Charge 1), seven charges of burglary (Charges 2-7 and 12) and four charges of theft (Charges 8-11). He was acquitted of two charges of burglary (Charges 6 and 12), one charge of theft (Charge 8) and convicted of the remainder of the charges after trial. The sentence imposed for each of the charges on which he was convicted is 10 months' imprisonment, sentences to run concurrently.

3. Before passing sentence the learned judge had called for a probation officer's report. The report concludes that the respondent who is now about 26 years of age, comes from a family with loose parental supervision. He has a previous conviction for theft in June 1989 and was fined $860. In July of the same year he was fined for possession of dangerous drugs and obstructing a police officer in the execution of his duty. In October 1989 he was fined for gambling. He was also associated with "some undesirable peers" and took drugs under their influence. The trial judge noted that he had never been in prison before. It was not suggested that he was a drug addict.

4. In mitigation, it was urged by counsel on his behalf that he was capable of hard work and he had a girl friend who was pregnant and whom he intended to marry. He would settle down and start a new life after his marriage. It was also pointed out to the judge that his co-accused Chan Ka-man who had pleaded guilty was given concurrent sentences of six months' imprisonment.

5. In her Reasons for Verdict, the judge noted that apart from Charge 1, the evidence against the respondent on the remaining charges came from the respondent himself who admitted these offences in his cautioned statements. She also took into account that which was contained in the probation officer's report and his co-operative attitude to the police in their enquiries. She therefore took a rehabilative approach towards sentencing.

6. The facts of the case are straightforward.

7. At about 7 a.m. on 24th July 1990 the police intercepted the respondent after a chase and found on his person a screwdriver for which he was unable to give a satisfactory reply. He was therefore taken to the police station. This forms the subject matter of Charge 1.

8. He then admitted under caution to various burglaries and thefts. The total amount of cash stolen came to $25,700. The items stolen included cameras, cassette players, amplifiers, and a cash register. The burglaries were committed in business premises selling food. The thefts were committed in cars belonging to persons unknown.

9. These offences took place in Kowloon between April and June of 1990, some of which were not reported to the police.

10. The tariff sentence for burglaries was laid down as a guideline in R v Lau Sik-kwong Cr. App. 628/1987, where it was held that for a burglary in non-domestic premises the correct starting point was two and a half years' imprisonment. In R v Fu Kwok-leung Cr. App. 246/1985, it was held that that was a proper sentence even if nothing had been stolen.

11. In Tong Hoi-fung (1988) 1 HKLR 610, at 611, Barker, J.A. held that where there is more than one offence of a similar nature, committed at different times, it is right for the Court to award a higher sentence than if there had been only one offence.

12. The trial judge did not refer to those decisions in her Reasons for Sentence nor did she indicate what starting point she had adopted.

13. Instead, she stated in her Reasons for Sentence that she took into consideration the respondent's "co-operative attitude to the Police in their enquiries when he confessed to the offences in various cautioned statements". During the voir dire, however, the respondent made serious allegations against the police in relation to the taking of his confession statements. As observed by Li, V.-P. in Cheung Yui-man A.R. 16/1985, "By his false accusations, he completely negated his previous confessions".

14. It is submitted on behalf of the Attorney General that there is nothing upon which to base the judge's rehabilative approach to sentencing. The mere indication that he intended to marry his pregnant girl friend is, it is argued, not sufficient. In order to better inform ourselves of the respondent's background, we called for a further report from the probation officer.

15. That report, which is dated the 24th May 1991, confirms that the respondent has made his girlfriend pregnant, and that, having done so, he wishes to marry her. But it goes on to suggest that the girl, who is 18, has decided to turn down his offer of marriage and to have an abortion instead, and that she has left Hong Kong. That suggestion has proved to be inaccurate. When the hearing resumed before us on the 24th May 1991, the girl was present in court. She was obviously pregnant. The instructions which she gave counsel for the respondent - and which counsel for the Attorney General did not challenge although he made no concession - is that she intends to take up the respondent's offer of marriage, and that their child is due in July. As things stand, the respondent is due to be released from prison in June.

16. Lastly, it is contended on behalf of the Attorney General that the judge erred in tailoring the sentences to take account of the sentence passed upon his co-accused.

17. The matter as it now stands before us involves a combination of unusual features. So much so that our decision forms no precedent for sentencing in future. In the normal way, the sentence passed upon the respondent would be manifestly inadequate. But in the unusual circumstances with which we are presented, we do not accede to the application to increase it. We make no order.