R. v. Wong Ka Wa

HCMA000564/1996

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO. 564 OF 1996

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Coram : Hon Stock, J. in Court

Date of hearing : 6 August 1996

Date of judgment : 6 August 1996

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J U D G M E N T

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1. This appellant was sentenced on 25th April 1996 to a term of 12 months imprisonment for attempted burglary. He was charged with two others. It was alleged that on 18th March 1996 he attempted to enter a private dwelling with intent to steal.

2. A female was at home with her baby. The appellant and two others knocked on her door, and when she did not response, the group or some of them attempted to gain entry by prising open the lock of the metal gate. The occupant alerted a neighbour by telephone and the police were called. The burglars became aware that where they were being watched from inside the premises, and they made off, but were shortly thereafter apprehended.

3. The appellant pleaded guilty. He has a string of previous convictions, including a number of offences of dishonesty and two offences of attempted burglary. At the time of the sentence he was serving a term of imprisonment of 8 months for another attempted burglary that was committed in November 1995. He was sentenced for the November 1995 offence on 15th April 1996. So the present offence was committed whilst he was on bail. The magistrate took a starting point of 18 months imprisonment and reduced the term to one of twelve months imprisonment, giving discount for the plea of guilty. He ordered the sentence to run consecutively to the term of 8 months imprisonment which the appellant was currently serving.

4. The magistrate's approach is perfectly proper. Given the facts of this offence and the fact that it was committed whilst on bail for a previous similar offence, the term imposed is neither manifestly excessive nor wrong in principle.

5. The appellant drew to my attention the fact that his accomplices were sentenced to only 4 months imprisonment for the same offence. I therefore caused enquiries to be made and it transpires that what he alleges is true. In this case, the 1st defendant was sentenced to 4 months imprisonment consecutive to 8 months imprisonment, the 8 month term being in respect of precisely the same offence as was committed by the appellant in November 1995. The 1st defendant was sentenced by a different magistrate on 7th May 1996. This appellant was the 2nd defendant. The 3rd defendant was sentenced on 24th June 1996 to 4 months imprisonment by a third magistrate for this offence. The 1st and 3rd defendants also have long criminal records. The appellant is aggrieved by this disparity in sentence.

6. There are circumstances in which disparities in sentence can be objectionable disparities. But this is not such a circumstance. It is well established that "where different sentences were passed on different occasions by different judges on different accused for the same offences, then the only consideration is whether the sentence passed on the appellant was appropriate". (See R. v. So Hung Lee [1986] HKLR 1049). The point is that if one sentence is inadequate, this court will not compound the error by reducing the sentence under appeal so as to render it inadequate as well. In my judgment, the sentence imposed by the magistrate on this appellant was appropriate.

7. The appellant has drawn to my attention the suggestion that his father is very ill and requires his assistance. The fact that the appellant is not in a position to attend to his father, if indeed his father is ill, is a fact that lies at the appellant's door. It has in any event not been shown before me that there are any strong compassionate grounds which would warrant the appellant's release.

8. In the circumstances, therefore I find that the sentence imposed upon the appellant is quite appropriate, and his appeal is dismissed.

Representation:

Miss Y.E. Mahamed, S.C.C., for Crown

Mr Wong Ka Wa (Appellant) in person