HKSAR v. Lau Hang Sang

CACC000397/2000

CACC 397/2000

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 397 OF 2000

(ON APPEAL FROM DCCC 345 OF 2000)

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Coram: Hon Stuart-Moore VP and Stock JA

Date of Hearing: 29 August 2001

Date of Judgment: 29 August 2001

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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):

1.On 15 May 2000, the Applicant pleaded guilty in the District Court to two charges relating to residential burglaries committed at night while the occupants at those addresses were asleep indoors. The burglaries were six days apart in February and March 2000. At that time the Applicant was on bail for trafficking in heroin and a related offence. In due course, he received a total sentence of eighteen months' imprisonment for those offences.

2.Judge Wilson sentenced the Applicant to a total of four years' imprisonment for the burglaries with which we are now concerned, having taken a starting point of three years for each offence. He then reduced the sentence on each charge to two years' imprisonment to take into account the pleas but he ordered that the sentence on charge 2 should run consecutively to the sentence on the first charge. The judge also ordered that these sentences should run consecutively to the eighteen-month term which had by then been imposed for the drugs offences.

3.The Applicant was almost three and a half months out of time when he first applied for leave to appeal. Leave to appeal out of time was refused by the single judge on 30 March 2001. The Applicant is well-versed in court procedures having collected nine previous convictions, including one for burglary in 1997 when he was sentenced to twenty-seven months' imprisonment.

4.The Applicant has provided no good reason for his lateness in lodging a notice for leave to appeal and we are not persuaded that the Applicant has any merit to his grounds of appeal save in one respect. The Applicant asserted that he had given positive assistance to the prosecution in a case which was unconnected to any of the matters now before the court. It is apparent from the material Ms Denise Chan has given to us today that there is support for this ground of appeal. The Applicant has, since sentence was imposed on him by Judge Wilson, earned some credit for his action and this must now be reflected in the present proceedings.

5.We propose, therefore, to give leave to appeal out of time. Treating the hearing as the appeal, we shall reduce the overall sentence being served for these offences from four years to three and a half years' imprisonment. The sentence on charge 1 will remain unaltered at two years' imprisonment. The sentence on charge 2 is reduced to a consecutive term of eighteen months, making three and a half years in all. This represents, approximately, a 40% reduction from the six-year starting point taken by the sentencing judge. We shall maintain the order made by the District Court judge that the sentences in these proceedings are also to be served consecutively to the earlier sentences totalling eighteen months for the drugs offences.

6.We are particularly grateful to Ms Chan, who has prepared this case as a prosecutor should, acting on her own initiative to anticipate such inquiries as were likely to have come from court. There were several, and she answered each of them in full.

Representation:

Ms Denise F.S. Chan, SADPP (Ag.), of the Department of Justice, for the Respondent.

Applicant in person.