HKSAR v. Chan Kam Wing

CACC000408/1997

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

1997, No. 408
(Criminal)

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Coram: Liu, Mayo & Stuart Moore, JJ.A.

Date of Hearing: 23 January 1998

Date of Judgment: 23 January 1998

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J U D G M E N T

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Stuart Moore, J.A. (giving the judgment of the Court):

1. This Applicant, aged 36, pleaded guilty on 3rd July 1997, to four charges of residential burglary before Judge Hawkes in the District Court. He was sentenced to concurrent terms of four years' imprisonment on each offence.

2. The burglaries were committed in the space of about a month between 14th February and 19th March 1997, in Tuen Mun and Yuen Long.

3. It is clear to this Court that the eleven-line Summary of Facts failed to set out all material matters which should have been included, such as the value of the goods, the nature of the property and the times when burglaries were committed. Generally, it failed to reflect the overall criminality. Summaries of this kind are simply not adequate for offences of this gravity.

4. Having said that, the learned judge was able to say in his Reasons for Sentence that the normal starting point for domestic premises burglaries is one of three years' imprisonment. He kept in mind the principle of totality and took the overall starting point as six years' imprisonment. He had in mind the bad record of this Applicant, which includes at least four previous court appearances in respect of burglaries amongst other offences, but the learned judge indicated that he would not be punishing the Applicant for those other offences again. He was simply unable to be as lenient with him as he might have been for somebody who had a clear record. He took into account the pleas of guilty.

5. The Applicant complains that the trial judge was prejudiced against him and that the term of imprisonment is too long. The starting point, he states, was too high and his lawyer's mitigation was ignored. Today, he adds to those grounds which he wrote in advance of the hearing. He says there are three newspaper cuttings in his possession which show lighter sentences than the one imposed upon him and, by drawing a comparison, he feels that he has been unfairly treated.

6. In the view of this Court, there is absolutely no merit in any the matters which have been put before us by this Applicant. The sentence was entirely appropriate and in accordance with authority. The case of R. v. Luk Wai-kit, (1993) 1 HKC 77, is as valid today as it was in 1993.

7. Accordingly, the application is dismissed. There is no merit in it at all and we propose to order that three months of the period served by this Applicant shall not be reckoned as part of the sentence. He will therefore serve longer.

Representation:

Mr. P.S. Chapman, S.A.D.P.P. for Respondent

Applicant in person.