THE QUEEN v. CHUI LAP PING

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JUDGMENT

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Silke, J.A.:

1. The Applicant was charged as the 2nd Defendant, jointly with one TSE, for the offence of attempted burglary. He was convicted on the 25th of January 1985 and sentenced to a period of three years' imprisonment. He now seeks leave to appeal against his conviction and sentence.

2. There is a history to this application. On the first occasion when listed, on the 14th of June, it was adjourned for the purpose of the provision of the transcript. The matter again came on for hearing on the 27th of August when there was some difficulty about legal representation. It was again adjourned, an explanation was asked for and now received from the solicitors concerned. I shall say no more about that.

3. Briefly, the facts were that on the 22nd of October 1984 the police party had been checking identity cards in a factory premises at 164 Lo Wai Tsuen, which is opposite some small huts, numbered for our purposes, 151 and 152. The police party consisted of the Chief Inspector Cartwright, a Sergeant 8391, a Senior Constable and two Constables. The Sergeant and one of the Constables came out of the factory premises and they saw, at a distance of 20 yards, two persons near 152. One of those persons had a crowbar. He was prizing the door of 152. The other was close to 151 and the Sergeant described him as the "look-out". The "look-out" shouted out "Police", and he wore a grey woollen jacket. There was a chase by the Constable and by the Sergeant. The Sergeant, having lost sight of the person he was chasing momentarily, caught that person. He is the Applicant before us. The Applicant seemed exhausted and there was evidence that he was breathless. The Constable apprehended the other man also after the chase

4. Inspector Cartwright also joined in the chase. He gave evidence not of seeing anyone actually tampering with the hut itself but of seeing two persons near it.

5. In his Reasons for Verdict the Trial Judge said, and this is the matter upon which Mr. Bell relies to found his ground of appeal and the only one argued before us:

"       PW3, Chief Inspector Cartwright, remained adament that the two men tampering with the hut were in fact the Accused. He lost sight of them only momentarily as they rounded a bend during the chase. There were no other young men in the vicinity and the Accused were breathless. ".

6. Having so said, the Judge went on to accept the evidence of the Prosecution. There was no evidence given by the Defence and he found the Applicant and the other man guilty.

7. The ground of appeal relates to the Trial Judge failing to direct himself with sufficient care on the issue of identification and it is Mr. Bell's contention that by saying that which I have recited he was putting words into Inspector Cartwright's mouth which he in fact never said. That being so, if he had fully appreciated the purport of Inspector Cartwright's evidence, would he still have come to the same conclusion?

8. We think that the method of expression used by the Trial Judge was a form of judicial shorthand and that what he intended to mean by the passage to which we have referred was that the two men, who had been seen at the hut by Inspector Cartwright, were in fact the two tamperers. The fact that he has used this somewhat unfortunate phraselogy in the light of the whole evidence of this case, did not give us any cause to think this conviction to be in any way unsafe or unsatisfactory. The application in respect of conviction is refused.

As to Sentence

9. The sentence imposed was one of three years. The attempt was at 9:45 in the morning. Premises were, just, domestic. Three points have been raised by Mr. Bell in relation to the sentence: first, that it is of itself excessive; second, that there is a disparity between the sentence passed on TSE of one year and the sentence on this Applicant of three; and third, that the Trial Judge gave the appearance of sentencing the Applicant for his previous record. That record showed him to have been convicted in 1982 on two separate occasions. First, for forgery and uttering forged documents and obtaining money by deception. He was sentenced to a suspended sentence of imprisonment. The second, when he received a total of 3½ years' imprisonment, was for two offences of burglary and four offences of obtaining property by deception. TSE had one previous conviction, in 1982, of burglary when he was sent to a Detention Centre.

10. We think the proper sentence in this case would have been one of two years for both. TSE, who received one year, could well consider himself lucky. There was a surprising disparity between his sentence and the one passed on the Applicant. But having said that we think the proper sentence is one of two years and certainly, there could be no allowance for any clear record.

11. We grant the application, allow the appeal, quash the sentence of three years and substitute therefor a sentence of two years' imprisonment.