HKSAR v. CHAN YUET WING

CACC 212 /2002

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 212 OF 2002

(ON APPEAL FROM DCCC NO. 249 OF 2002)

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J U D G M E N T

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Hon Yeung JA (giving judgment of the Court):

1. The applicant, Chan Yuet-wing pleaded guilty to a charge of burglary and a charge of theft. For the charge of burglary, he was sentenced to 20 months' imprisonment. For the theft charge, he was sentenced to a concurrent term of 8 month's imprisonment.

2. Mayo VP refused his application for leave to appeal against the sentence on 16 July 2002. He now renews his application.

3. The applicant was seen pulling up the rolling gate of a newspaper store at G/F No. 273A, Un Chau Street, Kowloon. He then took out a video compact disc player and a television set and placed them on a trolley before pulling down the rolling gate. The trolley with a plastic sieve was placed outside the store and they were the subject matters of the theft charge.

4. The applicant was arrested and he admitted that on seeing the rolling gate unlocked, he took the VCD player and the television set with a view to sell them.

5. The applicant has 14 previous convictions many of which involved dishonesty.

6. The applicant said he was under the influence of alcohol at the time of the offence. He said the store was not locked and he thought the VCD player and the television set were useless items. He did not enter the store and just took the items to see if they were useful.

7. The applicant suggested that his counsel told him that the likely sentence was a suspended sentence or at most a few months imprisonment. He placed before the court some newspaper reports of a number similar of cases in support of his contention that the sentence imposed on him was too severe.

8. He suggested that the trial judge was harsh to him because he had offended the judge by telling him the truth. He also suggested that the judge was embarrassed in not having his wig on when sentencing him and hence a harsh sentence was imposed.

9. The applicant had pleaded guilty to charges of burglary and theft, which are serious offences although the case may not be a very bad case of the type.

10. The applicant admitted to have pulled up the rolling gate of a store before removing a VCD player and a television set without the permission of their owner. He also intended to steal the trolley.

11. Sentence depends on the facts of each case. The cases referred to by the applicant all have unusual features. In DCCC 425 of 2002, the defendant who pleaded guilty to a charge of burglary was sentenced to 16 months imprisonment. He was 68 years old.

12. In DCCC 202 of 2002, the defendant was sentenced to 15 months imprisonment for burglary because of his genuine remorse. There was not a shred of evidence against him, yet he surrendered himself to police and made a full confession.

13. In DCCC 208 of 2002, the defendant was sentenced to 12 months imprisonment for burglary because he had already served 11 months imprisonment when he was sentenced because of the way the prosecution chose to present the case against him.

14. In DCCC 1127 of 2001, the defendant was sentenced to 8 months imprisonment for burglary. It was a case involving a police officer who on the spur of the moment took a mobile phone from a room and sold it for $200. The defendant had a clear record and for the offence, he would lose all the benefits that accrued to him for his 8 years service as a police officer.

15. There was no unusual feature in the applicant's case. In any event, the fact that other defendants in other cases receive lenient sentences is no justification for extending similar leniency to the applicant. The court must look at the facts of the case and the background of the applicant to decide if the sentence on him is manifestly excessive.

16. As the trial judge quite rightly pointed out, the applicant had 14 previous convictions and he did not learn any lesson from such convictions. Such previous convictions are aggravating factors. In HKSAR v Chan Pui Chi [1999] 2 HKLRD 830, this court said at page 834:

"....to the general rule that re-offending in the same or similar way may aggravate the offence, at least so far as sentence is concerned. This will have the result that the starting point which would have been adopted for a man of good character will sometimes need to be increased to take into account the aggravating features of persistence and the failure of previous sentences to deter on the one hand, and the court's duty to protect the public on the other.."

17. In HKSAR v Leung Tong and Chan Yuen Shing CACC 412 of 2000 (Unreported), we also said at page 4 of the judgment:

"Persistent offenders who show no interest in attempts to rehabilitate them will face longer sentences."

18. What his lawyer told him about the likely sentence is not relevant and his complaint about the judge is totally unjustified.

19. We are not persuaded that the starting point of 2 years and 6 months imprisonment adopted by the judge is wrong. The applicant is entitled to a one-third discount for pleading guilty to the charges. The total sentence of 20 months' imprisonment is neither wrong in principle nor manifestly excessive.

20. The application for leave to appeal against sentence is refused.