HKSAR v. CHOW SIU WANG

CACC 26/2003

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 26 OF 2003

(ON APPEAL FROM DCCC 1147 OF 2002)

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J U D G M E N T

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1. This is an application for leave to appeal against sentence.

2. The applicant was convicted before Judge Whaley in the District Court on his own plea on two charges of burglaries and a 3rd charge of unlawfully remaining in Hong Kong.

3. The Judge adopted a starting point of 3 years' imprisonment for each of the burglaries, and having reduced it by one-third to give credit for the guilty plea, imposed a term of 2 years' imprisonment on each. He also passed a sentence of 15 months' imprisonment on the 3rd charge. The Judge ordered the sentences on the burglaries to run concurrently and 9 months of the sentence on the 3rd charge to be concurrent with that on the first charge, reaching a total 2 1/2 years of imprisonment.

4. The only ground of appeal raised by the applicant is that the sentence is too long. And before me, he mainly adds to say that he wishes to return home as soon as possible.

5. In AG v Lui Kam Chi [1993] 1 HKC 215 and HKSAR v Tong Fuk Sing [1999] 3 HKC 332, the Court of Appeal held that the correct starting point for sentence in a burglary of domestic premises committed by a first offender of full age was three years' imprisonment. Also in Tong Fuk Sing, the Court of Appeal, following R v So Man King [1989] 1 HKLR 142, held that the appropriate sentence for unlawfully remaining in Hong Kong after a plea of guilty was 15 months' imprisonment.

6. The starting points adopted by the Judge in the present case were therefore correct and could not be challenged.

7. The two burglaries were committed on the same day of 30 September 2002, in respect of two flats in the same building, one on the 24th floor and the other on 26th floor. The summary of facts disclosed that the applicant and another person climbed down from the rooftop of the building to the 24th floor to commit the first burglary. From this flat, they stole two mobile phones, cash HK$650 and $100 in Singapore currency.

8. The Judge described the second burglary as an "opportunistic offence" and an "incidental" burglary. When the applicant and his accomplice were climbing up the drainage pipe from the 24th floor flat, they noticed that the metal window lattice at the kitchen of a flat on the 26th floor was not secured. They climbed into the second flat and stole $10 from there. The Judge considered that it would be appropriate for the sentence on the second burglary to be concurrent with that on the first burglary.

9. In my view, the Judge had taken a very lenient view when making the sentences on the two burglaries entirely concurrent. While the two burglaries were committed on the same day, one after the other, two sets of domestic premises were involved. Had the Judge ordered part of the sentence on the second burglary to be consecutive to the sentence on the first burglary, he would have been justified to do so. The applicant should consider himself lucky for receiving 2 1/2 years' imprisonment for his three offences. I do not see any reasonable ground for arguing that the overall sentence of 2 1/2 years' imprisonment is excessive; rather I see the possibility of the sentence being increased.

10. For the above reasons, I refuse the application.

11. I remind the applicant that he is entitled to make a fresh application before the Court of Appeal, within 14 days of today. But I need to warn him that the Court of Appeal, when dealing with the fresh application, if coming to a view that the application has no merit, may order a loss of time against him. The Court of Appeal has also the power to increase sentence.