HKSAR v. Chan Wing Chung

CACC000240/1997

IN THE COURT OF APPEAL

1997, No.240
(Criminal)

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Coram: Hon. Power, V.-P., Mortimer, V.-P. and Liu, J.A.

Date of hearing: 5 August 1997

Date of judgment: 5 August 1997

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J U D G M E N T

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Power, V.-P.(giving the judgment of the Court):

1. The applicant in this matter faced two charges - one of burglary and one of attempted burglary. He pleaded not guilty but was found guilty after trial before Judge Longley in the District Court and sentenced to imprisonment for three years on the first and two years on the second with one year of the second sentence ordered to be consecutive to the three years on the first sentence. He originally appealed against both conviction and sentence. He did not pursue his appeal against conviction but has pursued his appeal against sentence.

2. The facts revealed that at some time during the day of 4th December 1996, he entered the flat particularized in the charge and stole a quite valuable wristwatch. He pawned the watch and that at 9 p.m.on the evening of the following day, the 5th, he returned to the premises where he was seen by the owner of the watch trying to enter the premises. The owner then apprehended him and the police were called.

3. The applicant in his defence said that his friend who lived in the premises had given him the watch and that he went back on the following evening to look for him. The trial judge did not accept the evidence of the applicant and gave convincing reasons for so doing.

4. The application for leave to appeal against sentence is brought upon the basis that the sentence was in all the circumstances too long. The trial judge said when sentencing:

"Burglary of peoples' homes is always a serious matter. In my view, the correct starting point for an offence of burglary such as this is 3 years' imprisonment and, insofar as the charge of attempted burglary is concerned, the correct starting point in my view is 2 years' imprisonment.

You are entitled to no discount as being a man of previous good character. You have been before the courts repeatedly for offences of dishonesty. Your most recent four court appearances have all involved burglary offences. You have received substantial terms of imprisonment. They have not deterred you from repeating the offence. This court has no alternative but to pass a sentence which will give the public yet another breathing space from your activities. I take the view that the appropriate overall sentence in your case is sentences amounting to 4 years' imprisonment."

5. The applicant has not really advanced any grounds to support his suggestion that the sentences were too long. We are satisfied that the reasons given by the judge were entirely appropriate ones and that there is nothing which calls for our interference.

6. This application was wholly without merit and we order that there be one month's loss of time which means that one month of the time between entry of the notice of appeal and today's hearing will not count towards sentence.

Representation:

Ms. Mary Sin, S.A.D.P.P. (D.P.P.) for the Respondent.

Applicant in person.