R. v. Wong Man

CACC000372/1992

IN THE COURT OF APPEAL

1992, No. 372
(Criminal)

Headnote

Sentences for Burglary

Proper starting point for sentence in case of burglary of non-domestic premises is two and a half year's imprisonment. Consecutive terms of two years' imprisonment for two distinctly separate offences that were carefully planned and executed and not mere random opportunistic crimes are not excessive after pleas of guilty. Reference to various authorities including those relating to sentences for burglary of domestic premises.

IN THE COURT OF APPEAL

1992, No. 372
(Criminal)

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Coram: Hon. Silke, V.-P., Power, V.-P. & Macdougall, J.A.

Date of hearing: 30 March 1993

Date of judgment: 30 March 1993

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J U D G M E N T  O F  T H E  C O U R T

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Macdougall, J.A.:

1. The applicant pleaded guilty to two charges of burglary before His Honour Judge Lugar-Mawson in the District Court and was sentenced to two consecutive terms of two years' imprisonment. He now applies for leave to appeal against those sentences.

2. The agreed facts were that the applicant, who had obtained a bunch of keys from an employee of a sports store in Nathan Road, had the keys duplicated and, at 2 a.m. on 21 July 1991, he and two accomplices, having cut the padlock at the main entrance to the store, used the keys to deactivate the external burglar alarm, to open the iron grille at the entrance and then to switch off another burglar alarm inside the premises. Before leaving the shop with $25,964 in cash, 30 Nike Jackets, 8 Nike bags, 180 pairs of Nike socks and 224 pairs of Nike sport shoes of a total value of $63,000, they pried open a small door adjacent to the iron grille in order to create the impression that entry had been achieved forcibly through that entrance.

3. The second burglary occurred between 2 a.m. and 8 a.m. some six weeks later at a Chinese herbal shop. On this occasion $37,600 in cash and a large quantity of valuable herbs, bird's nest, abalone, dried scallops and shark's fins were stolen.

4. The police subsequently raided premises occupied by the applicant and two other men and found a pair of heavy duty bolt cutters, two crow-bars, two screwdrivers, a set of skeleton keys, a Nike travelling bag containing sports wear, ten pairs of Nike socks and four Nike jackets.

5. Two days later the applicant was arrested. In the course of the subsequent enquiry he made a number of cautioned statements in which he admitted that the Nike sports wear and bag found in at his residence had been stolen in the course of the burglary on 21 July and that the bolt cutters and crow-bars had been used for cutting the padlock and prising it from the main door of the sports store. He also admitted that he had participated in the burglary of the herbal shop and led the police to premises where part of the stolen goods were kept in a refrigerator. He said that his share of the sports shop burglary was $7,000 and some of the stolen sports wear, and that he had derived some $35,000 from the herbal shop robbery.

6. In passing sentence the judge observed that the court had stated in R. v. Li Ming Cr. App. 480/1985 (unreported) that the usual sentence for burglary is between two and four years but that a higher sentence would be imposed where the offender had committed more than one offence. While acknowledging that the present offences had been committed in shop premises, the judge further observed that this court had said in a later decision that three years' imprisonment was the proper starting point for burglary of domestic premises. No doubt, he had in mind the decision in R. v. Chan Yui-man Cr. App. 36 of 1988 (unreported) where this court also said that that starting point applied to a first offender of full age. Of greater relevance is the decision in R. v. Lau Siu-kwong Cr. App. 36 of 1988 (unreported) where another division of this court referred to R. v. Fu Kwok-leung Cr. App. 246 of 1985 (unreported) R. v. Khan Noor Said Cr. App. 548 of 1987 (unreported) and R. v. Tang Ping Cr. App. 93 of 1988 (unreported), and stated that the correct starting point for sentence in a case of burglary of non-domestic premises is two and a half years' imprisonment.

7. The judge went on to express the view, very properly in our opinion, that the present offences had obviously been the subject of considerable planning and had been efficiently carried out. They were not the typical opportunistic type of burglary that commonly comes to the attention of the courts. He formed the view that the relatively sophisticated nature of the offences was an aggravating factor. However, he took into account the applicant's clear record and his early pleas of guilty, and stated that had the applicant been found guilty after a contested trial he would have imposed concurrent sentences of two and a half years' imprisonment.

8. Mr. Plowman, who appeared for the applicant in this court but not in the court below, submitted that the sentences were manifestly excessive and that the judge had failed to give sufficient consideration to the applicant's clear record, his pleas of guilty and the totality principle.

9. We do not agree. These were not run of the mill impulse burglaries but were carefully planned and executed offences with a level of skill above that normally employed by the average burglar. The discovery at the applicant's home of the implements of burglary to which we have referred, serves only to reinforce the conclusion that these burglaries were not mere random opportunistic crimes. The offences were quite separate and justified consecutive sentences. Although the sentences were on the high side, they fell within the permissible range for burglaries of commercial premises. We do not consider that the judge was in error. The applications are therefore refused.

Representation:

Mr. A.A. Bruce, S.A.C.P. for Crown Prosecutor

Mr. G. Plowman assigned by D.L.A. for applicant