THE QUEEN v. LAU YUN FU

IN THE COURT OF APPEAL

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JUDGMENT

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Silke, J.A.:

1. The Applicant was charged with two counts of burglary: both took place on the 4th October 1985 and both in the same building in Des Voeux Road Central but at different premises within that building. The offences were committed with three other persons.

2. In the first burglary a, sum of approximately $2,700 - and a ring - was taken and in the second, a sum of approximately $4,000. He was caught in the act. He pleaded guilty at trial. At the time of the commission of these offences he was subject to a suspended sentence of imprisonment for burglary imposed on the 22nd March.

3. The other three persons with whom he was involved got varying different sentences. The grounds of the application here were: first, that the sentence passed, upon the Applicant was too high in that the judge started at three years before he gave any discount for the plea: he should have started lower. It was suggested that a decision of this Court in Fu Kwok Leung,⁽¹⁾ in which 3½ years for a single count of burglary was reduced to 2½ years, gives support to this proposition. We do not agree. We think that the sentence standing by itself of 2½ years for two burglaries committed by a man who was at the time he did them was the subject of a suspended sentence of imprisonment for yet another burglary is not in any way excessive.

4. The second and main point of this appeal is the disability under which the Applicant is suffering and will continue to suffer. To escape apprehension, he attempted to leave the building by the eleventh floor window and fell the whole eleven floors, with an interruption on the fourth floor as he went down. He fractured his lower jaw and lost many of his teeth. He broke his right arm. He fractured his left wrist. He fractured both thighs and he fractured his spine. His liver was lacerated. He is, because of the loss of teeth, presently placed upon a soft diet. His jaw is wired and the wiring is still present to maintain the fractured areas though they have now healed. Two plates were placed in his right forearm. The left wrist, an injury notoriously difficult to heal, is not yet completely cured. He has a metal insertion in his thigh and the X-rays of his back showed that there was a compression fracture of the bodies of L1 and L2 vertebrae. These are healing but he has to wear a back brace and he is still having treatment for his wrist. His back is, to use the expression of Dr. Philip Wen Chee Mao whose report of the 28th July of this year has been very helpfully placed before us, "fairly stable but with the use of the back brace he should be able to do more work". He is able to walk and is, therefore, mobile though with some difficulty. There will be further remedial surgery necessary to remove the various screws and plates which are still present at the bone fracture sites.

5. It is submitted to us that we should take a humanitarian view and that we should reduce the sentence considerably. Mr. Polson informs us that the Applicant came to Hong Kong in 1980 from China, that it will be difficult for him to get employment and that the likelihood of his turning to burglary again, or indeed any form of crime which needs mobility, is unlikely. We are told that there is no one to look after him in Hong Kong.

6. As I have said, the sentence of itself was a perfectly proper one. The general principal is that, while taking into consideration disabilities under which a person suffers they are not necessarily ones which causes a proper sentence to be altered either by the sentencer or by an Appellate Court.

7. Here, we are of the view that we should not alter this sentence. The Applicant is receiving treatment now and will need further treatment. He is improving. We are not persuaded that it would be humane to reduce the sentence. That being the only ground which would justify our interference the application is refused.

(1) Criminal Anneal No, 246 of 1985 (unreported)