THE QUEEN v. LAU SIU KWONG

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J U D G M E N T

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Power, J.A.:

1. The applicant seeks leave to appeal out of time. Having heard what has been urged on his behalf by Mr. Pedruco who appears for him, we are satisfied that it is appropriate to give him that leave. He was convicted after trial on one charge of handling stolen goods and one of burglary and was sentenced to four years and nine months on each charge, the sentences to be concurrent. He now appeals against those sentences.

2. The burglary charge involved the theft of computer and other electronic components from an electronic company. It is a type of offence that is very common in Hong Kong. Persons dressed like delivery men go with a van to premises either during the lunch hour or just before or just after the firm would be commencing or finishing its work, and take whatever they can lay their hands on, load the goods into their van and drive away.

3. The handling charge involved watch parts which were found after a search of premises which were occupied by another accused some ten days after the arrest on the burglary charge. Personal documents of the applicant were found in those premises and he claimed to the police that the goods, the subject of this charge, were his. These goods were in fact identified by employees of the Watch and Connection Company as goods that had been stolen from that company.

4. When sentencing the applicant the trial judge said:

"D1 (the applicant), who of the five defendants, was convicted of two separate charges, one of burglary and the other of handling. Those were not related as the goods in each case were burgled from different business premises at different times. He was born on the 5th of May 1955 which makes him 32 years old at present. He was convicted on four previous occasions, the two convictions in 1982 were similar offences of burglary and going equipped for stealing. He received 3 years for the burglary charge. For the purposes of sentencing, I shall ignore the other convictions. On the burglary charge D1, D2, D3 and D4 were practically caught red-handed as they came away from the burglary. This was a well-planned burglary and they had gone well-equipped down to the portable cordless drill. Since the burglary and the handling charges are two different matters, I would be entitled to give two consecutive sentence for D1 but I prefer to give one overall sentence running concurrently for both offences. He is therefore sentenced to 4 years 9 months for each charge to run concurrently."

The learned trial judge then went on to sentence each of the others involved in the burglary to three years and two months. The other accused who was involved in the handling charge was sentenced to imprisonment for two and a half years.

5. The principal complaint urged before us today relies upon the reduction of sentence that was made by another division of this Court when three of the others involved in the burglary charge appeared before it upon an application for leave to appeal against sentence. Mayo, J. who delivered the judgment of the court on that occasion said:

"All counsel submitted that 2 ½ years was the correct starting point for a burglary of non-domestic premises. They cited R. v. Fu Kwok Leung (C.A.246 of 1985), Khan Noor Said (C.A. 548 of 1987) and Tang Ping (Cr. App. 93 of 1988) in support of it. We agree that this is the correct starting point and that Judge Chua should have adhered to that rather than imposing sentences of 3 years 2 months on each man. All the Applicants had a clear record. The applications for leave are granted and the sentences imposed are accordingly reduced to 2 ½ years."

6. We are satisfied that the trial judge was perfectly correct in regarding the offences as separate offences meriting separate punishment. She could, had she wished to, have approached the matter by imposing consecutive sentences. If these had been exactly in line with the sentences imposed upon the other offenders, i.e. three years and two months for the burglary and two and half years for the handling, the applicant would have received a total period of imprisonment of five years and seven months. No doubt bearing in mind that a long sentence bears more hardly upon an offender the trial judge imposed a sentence of four years and nine months. The Court of Appeal was satisfied that the starting point of three years and two months for the burglary was wrong and that it should have been two years and six months. Assuming as we must in fairness to the applicant, that in his assessment the trial judge used a base figure of three years and two months, and applying the approach indicated above but using a base figure of 2 years and six months, it seems to us that there should be a reduction of about eight months. That being so, we allow the appeal to the extent of varying the sentence on each charge from one of four years and nine months to one of four years - the sentences to be concurrent.

7. We treat the hearing of the application as the hearing of the appeal, allow the appeal and vary the sentences accordingly.