HKSAR v. Chan Chi Ping
Read the full judgment text of CACC 184/1997 on BabelCite. This Court of Appeal judgment was delivered on 11 July 1997 before Power V-P, Nazareth V-P, Liu JA.
Criminal law – aggravated burglary – sentence appeal – starting point – concurrency – totality – weapon of offence – illegal immigrant – plea discount – Defendant entered victim's hut at night using chopper to prize door – defendant wore victim's clothing – asked for money – did not brandish weapon – took soft drinks – victim escaped – arrested – Whether 2-year increase for weapon was excessive – held: should be 18 months – Whether partial concurrency appropriate – held: 6 months concurrent, 9 months consecutive – Appeal allowed – total sentence reduced from 57 months to 45 months
Legal issues: Increase for aggravating factor in aggravated burglary · Concurrency of sentence for immigration offence
Outcome: Appeal allowed; sentences varied.
Cited by 6 cases
|
CACC000184/1997 IN THE COURT OF APPEAL 1997 No.184 (Criminal) _______________
_______________ Coram: Hon. Power, V.-P., Nazareth, V.-P. & Liu, J.A. Date of hearing: 11 July 1997 Date of judgment: 11 July 1997 _______________ J U D G M E N T _______________ Power, V.-P. (giving the judgment of the Court): 1. The applicant in this matter faced two charges: one of aggravated burglary and one of remaining in Hong Kong without authority. The aggravated burglary was particularized as follows: that he on 7th January 1997 at Yuen Long entered as a trespasser a building known as wooden hut No. 38 with intent to steal therein and at the time of entry had with him a weapon of offence, namely, a chopper. The second charge alleged that at the same time and place he was unlawfully remaining in Hong Kong without authority of the Director of Immigration. 2. The admitted facts was as follows: 3. At 1:25 a.m. on 7th January 1997, while a Miss Ho was sleeping in her bedroom in Hut No.38 in Tin Shing Wai, Yuen Long, she was woken hearing the sounds of someone prizing open the door of the hut. She saw the defendant enter her bedroom wearing a grey sport suit which belonged to her. She asked him who he was and he told him he was an illegal immigrant. She immediately got out of bed and at that time she noticed he was holding a chopper in his right hand. She was asked by the applicant for employment or for money and she refused. He then started to search her handbag and her chest of drawers. At this point she took the opportunity to go to her father's hut next door and a report was made to the police. When the police team arrived shortly thereafter they were able with her help to apprehend the applicant. 4. The applicant, it seems, had taken three cans of Pocari and two boxes of Vitasoy. 5. The trial judge when sentencing said:
He later went on to say:
6. The applicant today appeals against those sentences, it being argued by Mrs. Wacks, who appears for him, that the 57 months overall was an excessive sentence. It is submitted that the offences were committed by an illegal immigrant in a somewhat desperate position. This, it is suggested, is evidenced by the fact that he took only five soft drinks. It is submitted that while it was an aggravated burglary it was by no means an aggravated burglary of the worst kind. It is the principal submission that the totality was excessive given the nature and the circumstances of the offences. 7. This court is very much aware that the people of Hong Kong must be protected from offences of this kind. They are entitled to go to bed secure in their homes and not to have them invaded by persons seeking to steal whatever they can find therein. We are conscious also of the manifest risk of injury given that the applicant was carrying a chopper. We are, however, mindful of the admitted facts which indicate that he made no attempt to brandish the chopper or to use it to threaten. It could well have been that it was merely used to prize open the door of the hut. Further he showed no aggression after having asked for money and been refused and made no attempt to stop the victim from leaving the hut. 8. The two questions that concern the court are:
The court, conscious of the risk of injury that was involved and of the fact that aggravated burglary carries a maximum sentence of life imprisonment, are nonetheless satisfied that 2 years was too great an increase. The increase in the circumstances should not have been in excess of 18 months and the proper starting point for the offence should, therefore, have been 4½ years. This could properly have been reduced, on account of plea, by one-third to three years. We are satisfied further that, given the circumstances generally and in particular the youth of the applicant, some of the 15 months should have been made concurrent. We order therefore that the sentence of three years be imposed on the first charge and that nine months of the sentence of 15 months imposed on the second charge should be consecutive to the three years imposed on the first charge. The totality of sentence will, therefore, be three years and nine months. 9. The application is allowed. The hearing of the application is treated as the hearing of the appeal and the sentences are varied accordingly.
Representation: Mr. I.G. Cross & Mr. Y.M. Lin of Director of Public Prosecutions for the Respondent. Mrs. Penelope Wacks assigned by D.L.A. for the Applicant. |
Other judgments that cite this case