The Queen v. So Wing Yat

CACC000305/1985

Coram: Hon. Li, V.-P., O'Connor & Addison, J.J.

Date of Hearing: 5 November 1985

Date of Judgment: 5 November 1985

___________

JUDGMENT

__________

Li, V.-P.:

1. This is an application for leave to appeal against sentence. The applicant was convicted on his own plea of charge of burglary. He was sentenced to three years imprisonment.

2. The facts as admitted in the court below were that on the 9th of January this year at about 11.45 p.m. three patrolling police constables saw a man acting in a suspicious manner in a factory house in Lai Chi Kok Road. They approached him and the man fled. On inspection of the ground they found the iron grille and the window of this building on the mezzanine floor was prised open. They climbed through the window for a search. Inside the mezzanine floor they found the applicant hid behind the rolls of cloth wearing a pair of gloves with his head covered. The applicant was cautioned and arrested. The goods in the factory was ransacked although nothing was missing.

3. The applicant had been convicted on four occasions between 1982 and 1984. On those four occasions he was convicted of three offences of burglary. So this was his fourth one. The judge in his reasons of sentence said that he gave credit for his plea of guilty and took into consideration that nothing was stolen. Before sentencing the applicant the judge called for a probation officer's report which indicated that the applicant was an illegal immigrant who came to Hong Kong in 1979. He worked as a delivery worker, electroplating. He was, at first, a good worker. His employer, one Mr. Leung, of an electroplating factory found that he was a good and responsible worker. He liked him so much that he put him in a position of trust. It was at that point that their relationship turned sour. That was because the applicant arranged to burgle Mr. Leung's factory. Henceforth the applicant went from bad to worse.

4. Learned counsel for the applicant advanced several grounds in support of the application. The first was that the sentence was too severe in the circumstances of the case. She argued that there was no evidence that the applicant broke into the factory. The second was that the judge failed to see the probation report in the right perspective and attached excessive weight to the emotive language used by the probation officer. Thirdly, in the circumstances of the case the judge should have imposed a non-custodial sentence instead of a custodial sentence. We have read the probation officer's report. It cannot be said that the judge ignored the report. Nor is there any emotive language. The sentence in the circumstances, bearing in mind of his conduct and lack of remorse, is not excessive. He is beginning to be an old timer and a professional burglar. Despite counsel's valiant efforts we find that there is no merit in this application at all and accordingly the application for leave to appeal against sentence is refused.

5. The grounds of appeal are so devoid of merit that we feel there should be an order for loss of time. The total number of days between the application and the hearing is 127. We order there should be a loss of 90 days in time.

6. Before I finish we should deal with Crown counsel's complaint of the late delivery of the list of authorities. We, in this Court, have suffered the same embarrassment from time to time. Despite repeated practice directions certain counsel have the habit of handing over the list of authorities just before the hearing. The list of authorities should have been delivered two clear days prior to the hearing. We did not accede to the Crown's application for an adjournment in the present appeal solely because this is an appeal against sentence and that the grounds are such that we considered it might not be necessary to call on the counsel for the Crown. Our expectation proved correct. We did not call on him. Had it been otherwise we would have had no hesitation in granting an adjournment and awarding costs against the solicitors responsible for the delay. This applies not only to criminal cases but also to civil cases.

Representation:

Miss Panesar (R.J. Oliver) for appellant

Mr. G.S.X. McCoy (D.P.P.) for respondent