The Queen v. Tang Chun Chuen and Another

HCMA000079/1991

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY APPEAL NOS. 76, 77, 78, 79 & 94 of 1991

-----------------------

BETWEEN

-----------------------

Coram: Hon. Bewley, J. in Court

Date of hearing: 14 May 1991

Date of delivery of judgment: 21 May 1991

-----------------

JUDGMENT

-----------------

1. The appellants, Siu Kai Sun and Tang Chun Chuen, appeal against their sentences in five cases of theft, plus activated suspended sentences for unlawful possession (Siu) and burglary (Siu and Tang).  Siu was sentenced to a total of 33 months and Tang received 31 months.

2. Both men have appalling records. Up to and including 1st October 1990, Siu had 14 and Tang 16 convictions, mostly for offences involving dangerous drugs and dishonesty,   including theft, robbery and burglary. To some extent, as the magistrate noted, they have become the victims of lenient sentencing. For three offences of dishonesty in 1990 they were each fined and given suspended sentences. The suspended sentence was for burglary and was imposed on each appellant on 1st October. On the same day Siu was also given a further suspended sentence for unlawful possession.

3. Both appellants had clearly already begun to operate as a team. Starting the following day they committed a series of thefts of metal from construction companies in the same area   of Kowloon. These occurred on 2nd October (two charges) (Kl0597), 8th October (K10596), 17th October (K10960), 18th October (K11058) and 22nd October (K11218). The total value of the property stolen was just under $10,000.

4. Both appellants originally pleaded not guilty to all the charges but eventually pleaded guilty. Four out of the five cases were in Mr Gill's court but one (K10596) for some reason was before Miss Wong.  She sentenced the appellants first, on 11th December, when after considering DATC reports she imposed sentences of four months on each appellant.

5. Next day, having also considered reports and being aware of the sentences imposed by Miss Wong, Mr Gill had to deal with sentence in respect of the other four cases (five charges) plus the breaches of the suspended sentences.

6. He gave them credit for their belated guilty pleas but saw no reason for leniency in the face of the appellants barefaced disregard for the law.

7. The sentences were made up as follows:-

8. No complaint is made by Mr Wai, for the appellants, in respect of any of the individual sentences. He submits however that the magistrate failed to "stand back and look at the sentences overall and come to a proper sentence neither too heavy or too light", as Silke V.-P. said in R. v. Wong Kwai Pui CA No. 522 of 1989.

9. I am reluctant to interfere with a very careful sentencing exercise by Mr Gill, but I am persuaded that Mr Wai is right. Overall the total sentences are too high for the type of offences and the value of the property stolen.

10. The appeals are allowed and I order that the sentences on all the theft charges passed by both magistrates be reduced to three months. The other orders in respect of concurrent and consecutive sentences and the activation of the suspended sentences will stand. The result is that Siu will serve 20 months and Tang 18.

Representation:

Mr M.N. Holmes, Crown Counsel, for Respondent.

Mr Terence Wai, assigned by D.L.A., for Appellants.