HKSAR v. Tam Siu Wai

CACC000272/2001

CACC 272/2001

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 272 OF 2001

(ON APPEAL FROM DCCC 227, 475 & 562 OF 2001)

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Coram: Hon Stuart-Moore VP & Stock JA

Date of Hearing: 11 January 2002

Date of Judgment: 11 January 2002

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J U D G M E N T

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Stuart-Moore VP (giving the judgment of the Court):

Introduction

1.On 16 July 2001, the Applicant, aged 29, pleaded guilty in the District Court before Judge Derek Pang to four charges of burglary, all of which were directed at domestic premises. He was sentenced to a total of five years' imprisonment against which he now seeks leave to appeal on the sole ground that this was manifestly excessive having regard to the principles of totality.

Prosecution case

2.The first burglary (charge 1) occurred during daylight hours on 26 October 2000. 250 pieces of jade worth $50,000, a necklace and two credit cards were stolen from a flat on the 33rd floor of a building in Mongkok. The Applicant left his fingerprints on a plant holder which was normally kept on top of the jewellery box from which all the stolen items were taken.

3.The fourth burglary (charge 4) occurred on 6 December 2000 at around 11.00 a.m. The Applicant on this occasion gained access to a flat on the 10th floor of a building in North Point by falsely pretending to the caretaker of the premises downstairs that he had come to repair the air-conditioners inside one of the flats. A gold and diamond ring and a gold, jade and diamond ring were stolen together with a small amount of cash and a lighter. The Applicant again left his fingerprints at the premises and also on the visitors' registration book in which he had been asked to put his name and identity card number. The identity card number he wrote down was slightly different to his real one. The Applicant was also identified in a CCTV film which was recorded as he travelled to the 10th floor in a lift. While this burglary was in progress, a member of the family who lived at the flat returned there. The Applicant repeated his story about his reason for being at the flat and he was able to escape when the family member was on the telephone making inquiries to check out what the Applicant had said.

4.On 17 December 2000, the Applicant was arrested by the police for the burglary in charge 1, and later he had to appear at the District Court on 9 April 2001. However, he absconded and failed to appear at court on the due date.

5.The two remaining burglaries (charges 2 and 3) were committed by the Applicant in Happy Valley after he had absconded. These offences occurred on 30 April 2001 at neighbouring second floor flats in Leighton Road. They were committed in the early hours of the morning. The Applicant stole a lighter from one flat and he took three bundles of keys from the other. He was quickly arrested because a resident in a block of flats opposite had seen the Applicant climbing into one of the flats which he was burgling and had notified the police. It turned out in due course that the Applicant had climbed the pipes on the exterior of the building in order to gain access to the flats he had chosen to burgle. The flat which was the subject of charge 3 had been ransacked and, as it happens, the occupant almost caught the Applicant in the act because, as he returned to his flat, the Applicant was leaving it. The Applicant then hid in a room used for keeping rubbish. The stolen property from both flats was in the Applicant's possession when police arrested him.

6.The Applicant had five previous convictions. These related to a total of thirteen offences, ten of which were for theft or attempted theft. He had, however, never previously been sent to prison.

7.The judge adopted a starting point for each burglary offence of three years' imprisonment and, having reduced these sentences by one-third to two years to take into account the pleas of guilty, he then had regard to totality. The judge considered that an overall sentence of five years' imprisonment was appropriate. In order to achieve this, the judge made the two-year sentences on charges 1 and 2 consecutive, giving four years in all. He made a similar order in relation to charges 3 and 4 but made three years of those sentences to run concurrently with the other sentences, with only one year being ordered to run consecutively, making five years in all.

The application

8.Mr Alex Ng, on the Applicant's behalf, realistically accepted that the Applicant's bad character and the fact that he had absconded on bail were factors to be taken into account in assessing the overall length of the sentence. However, he put before us a number of previous decisions of the court in order to demonstrate that a sentence of five years was more than had been imposed for a similar number of burglaries in other cases. None of those decisions laid down guidelines. They were merely decisions of this court not to interfere with sentences of less than five years imposed in the District Court in similar cases to the matter presently before us.

Conclusion

9.The burglaries in the present case were serious. We consider that the fact that charges 2 and 3 were committed after the Applicant had absconded to be a particularly significant and aggravating feature. In the circumstances, the overall sentence passed by the judge was not open to criticism. However, we do not consider that the burglaries in charges 2 and 3 would more appropriately have attracted wholly concurrent sentences and that the resulting two years should then have been made consecutive to the sentence on charge 1. A further year's imprisonment on charge 4 was also justified, making five years in all.

10.Although the judge chose to split charges 2 and 3 for sentencing purposes, by making them consecutive in part to each other, the end result, in terms of the sentence to be served by the Applicant, is precisely the same. Accordingly, we do not propose to interfere with any of the sentences imposed.

11.The application must, therefore, be dismissed.

Representation:

Mr P.K. Madigan, SGC, of the Department of Justice, for the Respondent.

Mr Alex Ng, instructed by the Director of Legal Aid, for the Applicant.