THE QUEEN v. WONG TUNG

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

Magistracy CRIMINAL APPEAL NO. 73 OF 1991

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BETWEEN

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JUDGMENT

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1. The appellant was found guilty after trial in the magistrates court of the offence of burglary. The particulars of the offence were that on the 29th August1990 having entered as a trespasser Room 2 Block 5. Lai Chi Kok Temporary Housing Area he attempted to steal therein. He was convicted and sentenced to imprisonment for 12 months.

2. On the same occasion, he pleaded guilty to a charge of remaining in Hong Kong without authority that the authority the Director of Immigration after having landed unlawfully. For that offence, he was sentenced to imprisonment for 15 months. The magistrate ordered the sentences to run consecutively so that the overall effective sentence was imprisonment for 27 months.

3. Mr. Suen who appears for him today argues that the totality of the sentences is excessive. He finds no fault with either of the individual sentences.

4. The learned magistrate, in her Reasons for Sentence referred to a decision of the Court of Appeal in Attorney General v. Chan So (Review application No. 8 of 1976) where it was held that imprisonment for 18 months for a burglary in the residential area was appropriate in the case of an offender who had a lengthy record. The magistrate took account of the fact that this appellant had a clear record and considered that he should be dealt with more leniently than a person such as Chan So. And she therefore regarded a term of 12 months as being appropriate. In respect of the remaining unlawfully conviction, she followed the tariff guidelines set underneath a well-known case of So Man King.

5. So it can be said as Mr Forlin for the Respondent has submitted, that the learned magistrate s individual sentences cannot be faulted.

6. In considering the questions as to how she should order the sentences to be served the magistrate took the view that they were totally different offences and that they should be served consecutively. She was of the view that if the sentences were not made consecutively then the effect would be that the appellant would not be punished for the burglary. I am unable to fault the learned magistrate's reasoning and accordingly, I find myself unable to say that the sentences are either excessive individually or in total.

7. As a result I must, therefore order that the appeal be dismissed.