THE QUEEN v. CHAN YUEN SHING AND ANOTHER

IN THE COURT OF APPEAL

1987, No. 23
(Criminal)

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J U D G M E N T

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Silke, J.A.:

1. The Applicants, Chan Yuen Shing and Chan Yuk Ping, were jointly charged in the District Court before Judge Rattigun with burglary and with causing criminal damage. They were convicted on their own plea and now seek leave to appeal against the sentences of 3 years for the burglary and 6 months concurrent for criminal damage.

2. On the 8th September 1986, at about half past two in the morning, a police patrol was on duty in Tsuen Wan and in the area of the Nam Pei Hong Sum Yum Drugs Company Limited in Hoi Pa Street. They heard the sound of hammering and noises coming from the area. They followed up that sound and found both of the Applicants in a toilet. When they went into the toilet, they found that a hole had been bored through the wall of the toilet into the “Nam Pei Hong" Drugs Company - a medicine shop with the total stock value of approximately $1.2 million. Bottles of medicine were found in the toilet, having been removed from the shop and in the process of being removed altogether from the vicinity. It was clear that this was a planned burglary and a large amount of equipment for the purpose of breaking in was found and, as I have said, the two Applicants were caught red-handed.

3. They pleaded guilty at trial. The 1st Applicant, Chan Yuen Shing, had a previ~us conviction for burglary in January 1984 for which he had been sentenced to a period of 12 months' imprisonment. He also had a previous conviction in 1980 of going equipped for stealing. Chan Yuk Ping, the 2nd Applicant, had four convictions, none of them directly concerning offences of this nature. They were fighting in a public place, loitering and common assault. There was also an offence of remaining illegally in Hong Kong. Both Applicants had come from China some years ago.

4. The trial judge before imposing the sentences he did called for background reports from the Social Welfare Department. They must have been of assistance to him.

5. It is Mr. Tang's submission today that the sentences are out of line with sentences passed for similar offences. Sentences in recent days approved by the Court of Appeal suggests that a tariff of 3½ years for a single burglary in non-domestic premises is the top end of the scale after trial. He is not suggesting the 3 years was excessive but he does submit that it was wrong in principle. Further that there was not sufficient differentiation between the 1st and the 2nd Applicants bearing in mind the difference in their previous criminal history. He has very usefully supplied us with a list of previous cases considered in this Court from 1985 up to the very recent one in which judgment was given on the 17th February 1987, Tam Pui Yan[1] .. These are certainly of assistance to us but each particular offence must be viewed in its own light. This was a well-planned burglary. It could well have been a very successful one had it not been interrupted by the police. Both the Applicants were using their knowledge of building in the manner in which they perpetrated this burglary.

6. If we had thought that the judge had passed a deliberately deterrent sentence, then we might well have considered interfering. What he said in passing the sentence was:

"They have got to be punished severely. A sentence should also be a deterrent.”

Had it been deterrent here in the sense of being completely out of line with previous sentences, then interference would have taken place. But we do not think that to be so. The sentences are on the high side, we agree, but they are not so high as would warrant our making any alteration in them. In those circumstances, the applications are refused.