The Queen v. Wong Kwun Po

CACC000138/1990

BETWEEN

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Coram: Hon. Sir Derek Cons, Ag. C.J., Macdougall, J.A. & Jones, J.

Date of hearing: 7 August 1990

Date of delivery of judgment: 7 August 1990

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JUDGMENT

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Sir Derek Cons, Ag. C.J., delivered the judgment of the Court:

1. This is an application for leave to appeal against sentences imposed by Judge Corcoran in the District Court for two offences of burglary and one of possession of an offensive weapon.

2. The background to the offences is quite simple. In Christmas of last year to early January this year a construction site in Shek Kip Mei at the Lung Ping Temporary. Housing Area, had been subject to so many burglaries that the staff decided to make surprise checks in the evening.  They did so on the 5th January and there saw the Defendant and another man break into the site store, from which the Defendant took an axe with a wooden handle. The two then broke into the company office, using not the axe, but a crowbar that they picked up nearby. At this stage the staff called the police. When the police arrived the two men were in the act of ransacking the company office. They had at some stage previously taken five rolls of electric wire and placed them outside the office for subsequent removal.

3. After his arrest the Defendant admitted to the police that he had burgled the site the previous week and had taken then a camera and a small television set which had been locked away in one of the drawers. He led the police to recover these items from his home.

4. The Defendant is aged 30. He has been a casual worker since he came to Hong Kong in 1979 but was unemployed at the time of the offence.

5. He pleaded guilty to the charges against him. The judge took that into account and in passing sentence he said:

"I considered that ..... notwithstanding his clear record, a suspended sentence and probation would have been wholly wrong for two burglaries"

with which we entirely agree, but he went on to add that one of the burglaries had taken place in a private home, a mistake he repeated when referring to the totality of the offences. There is nothing in the record which should have led the judge to this mistake and we can only conclude that it was a minor mental aberration.  In our view, having regard to the whole of the circumstances, a total sentence of two-and-a-half years, which is what the judge passed, would not have been manifestly excessive. But we think that some allowance should be made for the obvious mistake. we therefore grant the application for leave to appeal, treat the hearing as the appeal itself, allow the appeal, reduce the sentence on charge no. 6 from two-and-a-half years to two years, all the sentences to remain concurrent.

Representation:

C. Coghlan Crown Prosecutor for the Respondent

Alexander Wong (D.L.A.) for the Applicant