The Queen v. Tam Cheuk Keung

CACC000181/1989

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Coram: Cons, V.P., Kempster & Macdougall, JJ.A.

Date of hearing: 7 September 1989

Date of delivery of judgment: 7 September 1989

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J U D G M E N T

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Cons, V.P., delivered the judgment of the Court:

1. The Applicant, TAM Cheuk Keung, was, in September last year, employed by a restaurant which provided staff quarters on the 26th floor of Tung Ning House in Shatin. On three almost consecutive days towards the end of the month, that is on two occasions at lunchtime and once in the evening, he entered three neighbouring flats by the simple expedient of climbing down from the roof or out through his own window into an open window of the flat in question. Once there he stole a variety of objects, such as watches, bracelets, transistor radios, cassette recorders, cameras, hair dryers and so on, and where it was available, cash. He took these out by the front door. On one occasion his haul was so good that he wedged the door open so that he could come back for a second load.

2. The burglaries were reported to the police, so that when by complete chance some of the stolen items were found in the Defendant's room on 13th October, he was duly arrested. He confessed straight away to two of the crimes and, soon afterwards, when a further particular part of the stolen property was identified to the third. Nevertheless he pleaded not guilty when brought up on three charges of burglary in the New Territories District Court. He was however convicted after trial by Judge D'Almada Remedios.

3. An application for leave to appeal against the convictions has not been pursued. We are concerned today only with the application regarding sentence. The judge imposed consecutive sentences, two- years, one year and one year respectively, that is a total of four years, saying that he had in mind the overall or totality approach. No criticism is made of his adoption of that approach.

4. Today the suggestion of Mr. Macrae, appearing for the Applicant, is that the overall figure is excessive, even bearing in mind that the Applicant has one previous conviction for burglary some four years ago and that there are no personal matters which can be put forward in mitigation. He would describe the Applicant's exploit as no more than a rash or spree of non-serious burglaries. They are a rash or a spree because, as we mentioned, they took place within short space of time. Then, with his usual thoroughness, he has analysed what he suggests to show them to be non-serious into five particular factors which he has discussed with us. He suggests that, having regard to these factors, the Applicant is really little more than a social nuisance, and not a danger to society, although perhaps he may be tending in that direction.

5. Mr. Macrae has also drawn our attention to three cases in which this Court has had to deal with burglaries perhaps not too dissimilar from the present and to comments that were made in the judgments. All that he has said is matter which is doubtless proper for consideration with regard to sentence. Indeed we see no reason to think that the judge did not consider it as well. But even bearing everything in mind, we are not persuaded that the circumstances of the present instance are such that a reasonable judge, having had the opportunity of observing the Applicant throughout the trial, could not conclude that four years overall was an appropriate sentence. We do not find it excessive.

The application must therefore be dismissed.

Representation:

Andrew Macrae (M/s So & Karbhari) for Applicant

C. Coghlan Crown Prosecutor of Respondent