The Queen v. Chan Yui Man

CACC000036/1988

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Coram: Yang, C.J. & Silke, V.-P.

Date of Hearitng: 23 February 1989

Date of Judgment: 23 February 1989

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J U D G N E N T

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Silike ,V. P.:

1. The Applicant, Chan Yui Man, was convicted after trial before His Honour Judge D'Almada Remedios in the District Court on 31st December 1987. The conviction was on three charges: first: burglary on 5th May 1987; second: handling stolen goods on 21st May 1987 and third: burglary on 12th July 1987.

2. In respect of those offences he received sentences of imprisonment on the first charge of 2 years on the second of 6 months' imprisonment concurrent to the first and on the third 2½ years' imprisonment consecutive to the other two periods of imprisonment giving in all a totality of 4½ years' imprisonment.

3. He filed his application for leave to appeal against conviction on 19th January 1988 and a subsequent application for leave to appeal against sentence on 28th January 1983. The application in respect of conviction was not abandoned until 13th January 1989 which seems to be the reason for the delay in this matter coming on for hearing. We are now concerned with the sentences passed.

4. Mr. Ramanathan, who appears for the Applicant in this Court, has submitted that while the trial judge was correct in making the sentences on the first and the third charges consecutive, nevertheless, the totality achieved was too high.

5. The Applicant is aged 23. He has a clear record. These were, what I might term, straight forward burglaries. In the first the premises was ransacked and some valuable articles were taken. In the second, a window vas broken and again valuable articles were taken. On the charge of handling the watch concerned was recovered. On the other charges no property has been recovered.

6. This of course, was a conviction after trial.. There were confessional statements which were contested and then admitted after a voir dire as to its admissibility had been conducted. It was accented that the Applicant is not, as yet a professional burglar.

7. We have been referred to a series of cases concerning burglary offences in each of which the applicant had a long history of offences and was in effect a recidivist. We have also been referred to Lau Siu Kwong Crim. App. 628 of 1987 in which it a said that 2½ years was the correct starting point for a burglary of non-domestic premises. These premises were, of course, domestic. We think three years is about the proper starting point for a first offender of full age.

8. We accept that the burglaries were two separate offences but having considered the facts of this case and the matters which had been drawn to our attention we think the totality achieved was too high. Consecutive sentences were certainly correct but a totality of 3 years and 9 months would have been in all the circumstances a proper sentence.

9. The application for leave is granted, the appeal allowed and the sentence on the first charge of 2 years is confirmed as is the sentence on the second of 6 months concurrent with it. The sentence on the third charge is reduced from 2½ years to 1 year and 9 month, consecutive to charges one and two, giving a totality of 3 years and 9 months.

Representation:

K. Ramanathan, Esq. (D. L. A.) for Applicant

I.G. Cross, Esq. & Miss Ada Chung for Crown/Respondent