ATTORNEY GENERAL v. LO CHING FAI

IN THE COURT OF APPEAL

1995, No 12
(Application for Review)

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J U D G M E N T

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Bokhary, J.A.:

1. This is an application for review of sentence.

2. The respondent is a man of previous good character in his mid-twenties.

3. He faced three charges of burglary of domestic premises.

4. When he appeared before Deputy Judge HC Wong in the District Court, he pleaded guilty to the 2nd and 3rd charges, while the prosecution offered no evidence on the 1st charge.

5. The judge adjourned for a Probation Officer's Report in order to learn more about the respondent's background.

6. At the resumed hearing on July 31 last year, the judge passed concurrent sentences of 18 months' imprisonment on each charge, and suspended both sentences for three years.

7. That sentence of 18 months' imprisonment suspended for three years struck the Attorney General as wrong in principle or manifestly inadequate. In August 14 last year, he obtained leave from the Chief Justice to apply to this Court for a review of that sentence.

8. Both burglaries were of domestic premises in the afternoon: one of a flat in Queen's Road West on June 16, 1994; and the other of another flat in that road on the 6th of the following month.

9. Each time, the applicant pressed the door bell to make sure that nobody was in, and then broke into the flat through a ventilation window.

10. From the first flat, he stole two cameras and cash in the form of ￡25 and US$25.

11. And from the second flat, he stole HK$1,500 in cash and a chopper.

12. What the judge said in passing sentence was this:

" The Defendant was charged with 3 counts of burglary, and the Defendant pleaded guilty to 2 counts of burglary before me. The Crown offered no evidence on the one of the 3 charges.

The Defendant has a clear record. He had maintained regular employment with Design 2000 for 6 years after secondary school. He committed the present offences at a time he lost his well-paid job due to redundancy and was working as a casual cleaning labourer. Since the he has been working as showroom co-ordinator for Lamex Trading Company Limited for the past 10 months.

His background report shows he is remorseful and regretted his action and that he pleaded guilty to the charges. The amount taken was small.

I sentenced him to 18 months' imprisonment on each charge to be served concurrently, suspended for 3 years."

13. It is now well-established, as one sees from the decision of this Court in AG v. Lui Kam Chi [1993] 1 HKC 215, that three years' imprisonment is in general the appropriate starting point for a single offence of burglary of domestic premises committed by a first offender of full age in circumstances unattended by either particular aggravation or particular mitigation.

14. And as we pointed out in R v. Tong Hoi-fung [1988] 1 HKLR 610 at p. 611 I-J, this Court "has said time and time again 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."

15. In the present case, we are of the view that the appropriate overall starting point is 3 1/2 years' imprisonment.

16. As is generally the case, it does not matter whether one arrives at that overall starting point by way of concurrent sentences or by way of consecutive sentences.

17. If the sentences are made concurrent, then each term must be higher than it would be if it were set for one offence only.

18. If, on the other hand, the sentences are made consecutive, then each term must be scaled down to avoid an excessive total.

19. In our view, the terms ought to be of 3 1/2 years' imprisonment if concurrent but of one year and nine months' imprisonment each, still giving a total 3 1/2 years' imprisonment, if consecutive.

20. Here, we consider concurrent terms of 3 1/2 years' imprisonment each preferrable as being simpler.

21. The respondent's available mitigation consisted essentially of his guilty pleas, for which a discount of one-third would be appropriate.

22. But there were other elements of mitigation available to him, such as his previous good character and the fact that he committed these offences after losing a good job through redundancy and being able to secure only a far less rewarding job.

23. So we think a discount in excess of one-third was appropriate. And we think that the concurrent terms should each have been discounted from 3 1/2 years' imprisonment to two years' imprisonment.

24. Can suspending those sentences be justified? In our view, it cannot. Suspended sentences have a useful role to play in our system. But exceptional circumstances are required if an immediate custodial sentence for burglary of domestic premises is to be avoided. And we do not regard the present circumstances as exceptional.

25. It must be remembered that burglary is a very serious offence. Take for example the present case. On each occasion, the respondent rang the door bell to ensure that no one was home. But that is not foolproof. And even if it were, what about somebody coming home while the burglar was still there?

26. In the absence of special circumstances pertaining to the offence or the offender which warrant it, a suspended sentence for burglary for domestic premises is, even when an accused of previous good character pleads guilty, wrong in principle as being insufficient protection for the public. We must of course respect the discretion of each sentencing judge. But at the same time, justice and even-handedness requires that we bring a measure of uniformity to sentencing.

27. In our view, the judge should have imposed an immediate custodial sentence of two years' imprisonment. A suspended sentence was wrong in principle.

28. But that does not mean that we will impose that term now.

29. It is not the practice of this Court to give an automatic reduction every time just because a sentence is imposed on review rather than at trial. But where, as here, someone receives an immediate custodial sentence on review having been dealt with at trial by a sentence other than immediate custodial one, then it ought to be recognized that the impact of the immediate custodial sentence is bound to be heavier than it would have been if it had been imposed in the first place. That additional impact ought to be softened by a reduction.

30. So although we accede to the Attorney General's application and impose an immediate custodial sentence, we impose on each charge an immediate custodial sentence not of two years' imprisonment but rather of 18 months' imprisonment only. So the total sentence is an immediate custodial sentence of 18 months' imprisonment. As it happens, 18 months' imprisonment is the term set by the judge. So the net practical result is that sentence now ceases to be suspended and becomes an immediate custodial sentence.