HKSAR v. WONG PANG

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

1997, No.713
(Criminal)

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J U D G M E N T

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Power, V.-P. (giving the judgment of the Court):

1. This applicant faced three charges of burglary and one of unlawful remaining. He pleaded guilty, before Judge Hawkes, to all charges and was sentenced to three years on each of each of the burglary charges, those sentences were ordered to be concurrent, and to one year and three months consecutive on the unlawful remaining charge. He now seeks leave to appeal against those sentences.

2. He had unlawfully entered Hong Kong from Shenzhen and, it was charged, that on the evening of 15th July 1997, he entered three domestic premises in Hiu Fung House, Fung Wah Estate, Chai Wan and, therein, stole various articles. The particulars of the charges are as follows.

3. His entry into the last of the premises was his downfall as the householder awoke, saw a stranger in his flat and raised the alarm. The applicant made off with a watch belonging to the householder but abandoned two bags which were later found to contain goods stolen from other premises. The police were called and, shortly thereafter, the applicant was located, subdued and arrested. Money and various items were found on his person and in his backpack, all of which proved to be goods stolen from one or other of the households. Also stolen goods, as we have indicated, were found in the two bags left in Room 1001.

4. The applicant was clearly taking all he could find that was portable and of value in the premises which he entered.

5. When sentencing the trial judge said:

"The normal starting point for sentence for burglary offences involving domestic premises is 3 year' imprisonment. The usual sentence for the immigration charge is 15 months' imprisonment.

I had the benefit of submissions by Mr. Huang who has given the court background information about the accused and the offences.

It is very much to the accused's credit that he has pleaded guilty to the charges at the earliest opportunity.

Taking into account the facts of this case, the pleas of guilty, submissions by Mr. Huang and bearing in mind the totality principle, the accused is convicted on all charges and is sentenced to 3 years' imprisonment on each of the burglary charges to be concurrent, and 15 months' imprisonment on the immigration charge to be consecutive."

6. Mr. Huang, who appears for the applicant today, really argues only one point which is that the question of totality was not adequately considered by the trial judge. We find some difficulty following the approach adopted by the trial judge. He clearly stated that he was taking into account the fact of the pleas. He was correct in stating that the starting point for burglaries was three years but he then went on to impose three years on each of the burglary counts. It may have been, indeed we think it must have been, that when making the sentences concurrent, he took into account the fact that the applicant had entered pleas to each of them. We think a more logical and understandable approach would have been to give credit for the plea in each sentence rather than to give it by imposing the normal sentence after trial in each case and to then make the three sentences concurrent.

7. It is argued by Mr. Huang that what was wrong with the sentence overall was not so much the imposition of sentences of three years concurrent for the burglaries but the addition of an unadjusted 15 months. He suggests that the judge should have adjusted that sentence both because of totality and because the offences all occurred in what might be described as a "burglary spree". He suggests that this latter factor was either ignored or given insufficient weight.

8. The applicant entered three residential premises albeit in the same building. We know from the circumstances of his arrest that he was prepared to put up resistance if he met opposition. In each household he took whatever he could that was of value. The fact that it was a "burglary spree" in which the three offences were committed within a short space of time in the same building, while not a factor of very significant weight, should be borne in mind when sentencing. We are, however, unable to say that it was not in the judge's mind when he imposed the concurrent sentences. The overall sentence of 3 years for the three burglaries was, we are satisfied, not excessive.

9. We turn to the matter of totality. There are a number of ways in which this adjustment could be approached. When pressed, Mr. Wong said that the adjustment for plea should have reduced the starting point of 3 years on each of the burglaries to one of 2 years. That would have produced an overall unadjusted sentence for the three burglaries of six years. This, he suggested, could properly be adjusted to three years on the totality basis. We think that that is a generous adjustment but are, for the purpose of assessing sentence, prepared to accept it. He then suggested that the sentence of one year and three months, which is already a sentence after plea, should be added to the three years, and that that overall sentence of four years and three months should then also be adjusted for totality. Was any such further adjustment required?

10. When we measure that sentence against the overall culpability, we are satisfied that it was not. The sentence of four years and three months imposed was neither manifestly excessive or wrong in principle. It was, in our view, a proper sentence and application is, therefore, refused.