The Queen v. Woo Kau

CACC000422/1986

IN THE COURT OF APPEAL

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BETWEEN

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Coram: Li, V-P, Yang, J.A. & Penlington, J.

Date of hearing: 9th October 1986

Date of delivery of Judgment: 9th October 1986

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JUDGMENT

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Penlington, J.

1. This is an application for leave to appeal against sentence.

2. The applicant pleaded guilty to two charges of burglary in that he entered premises by night with intent to steal therefrom and to one charge of handling stolen goods. The agreed facts in relation to the first two charges were that the occupants of two flats found that iron grilles had been pushed aside, doors prized open and the premises entered when they were absent, though strangely nothing was taken on either occasion although the premises were ransacked. The applicant's palm or thumb print was found in each of these premises. The third charge relates to a burglary in February, 1986 when, inter alia, a Rolex watch was stolen and, on the applicant's arrest, he was found to be wearing that watch.

3. The applicant pleaded guilty to all 3 charges and was sentenced to 6 years for the first two, that is the burglaries, and 2 years on the third, all sentences to be concurrent.

4. It is to be noted that the maximum sentence for burglary and for handling stolen goods is 14 years imprisonment. This trial was in the District Court and the maximum jurisdiction of District Court is 7 years imprisonment. However, in assessing the proper sentence for a crime, the court should not look at its jurisdiction but at the proper sentence for the offence. (Chan Kang-chew v. R. 1963 H.K.L.R. 300).

5. The two burglary offences in this case were committed in June, 1985 and November 1985. The Judge in the Court below referred to a previous conviction for burglary in 1980 when the applicant was sentenced to 5 years imprisonment. What was not apparently before him was that he was also sentenced in February 1984 for another charge of burglary when he was sentenced to 2 years imprisonment. This caused us some concern in relation to the offence in June 1985 but we are assured that he was in fact released in May 1985. No doubt because he was in custody prior to his sentence. It does, however, clearly indicate, as the learned judge below said, that he has offended again virtually immediately after his release.

6. Nothing was stolen during the course of the two burglaries but the trial judge imposed substantial sentences principally because of the applicant's appalling record. He said that the applicant had reached the stage where he is no longer deserving of being given a chance and the time had come when society should be protected against the applicant, who is clearly a professional burglar. That is manifestly clear on looking at his record which goes back to 1962 and shows 16 separate appearances on theft or burglary charges. It is, however, a well established principle that man should not be sentenced for previous convictions. In the case of R. v. Chow Chi man⁽¹⁾, Bewley, J. said where an appellant also had a very bad record; "that this is not a bad case of going equipped for stealing think the magistrate was sentencing the applicant on his record and not what he actually did. The sentence was therefore wrong in principle. Previous convictions merely disentitled a defendant to any sympathy from the court. They are not a ground for increasing the normal sentence for that offence". Despite the appalling record that this applicant has, we think that the sentences passed here were wrong in principle but we do not consider that, taking into account his record and the fact that these offences were committed some time apart June 1985, November 1985 and February 1986 in different premises, the offences were part of one act. There is nothing here which requires that there should be concurrent sentences. We think that sentences on each of the two burglary charges are excessive and those sentences will be reduced to 3 years for each; they will however be consecutive. The sentence for the handling charge of 2 years was proper and that normally would also be consecutive giving a total of 8 years imprisonment. However, we consider that the totality of that sentence is too high and the sentence for the handling will therefore be concurrent with the other two, giving a total of 6 years imprisonment.

(1)    [1980] H. K. L. R. 703

Representation:

Mr. Stephen Ma (D.L.A.) for Applicant

Mr. Harris, Counsel for Respondent/Crown Prosecutor