HKSAR v. Leung Tong and Another

CACC000412/2000

CACC 412/2000

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 412 OF 2000

(ON APPEAL FROM DCCC 783 OF 2000)

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Coram: Hon Stuart-Moore, V-P and Yeung, J.

Date of Hearing: 28 February 2001

Date of Judgment: 28 February 2001

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J U D G M E N T

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Hon Yeung J (giving the judgment of the Court):

1. The 1st Applicant Leung Tong (A1) and the 2nd Applicant Chan Yuen Shing (A2) pleaded guilty before Deputy Judge Browne in the District Court to 2 charges of burglary. They were sentenced to 32 months' imprisonment for each charge to run concurrently. The Applicants now seek leave to appeal against the sentences.

2. The Applicants were practically caught red-handed, to use their counsel's words, when they were burgling a ginseng shop and a dental clinic in Shamshuipo.

3. They prised open a window, cut out a big hole of 19 inches x 18 inches on a gate to enter the ginseng shop. They also removed an air-conditioner in order to enter the dental clinic through the air-conditioner slot.

4. A1 was arrested as he was coming out of the rear courtyard of the ginseng shop and the dental clinic. A2 was discovered by the police as he was climbing out of the dental clinic through the air-conditioner slot.

5. Over $59,000 worth of properties was taken from the ginseng shop and about $8,000 worth of properties was taken from the dental clinic.

6. A1 had 8 previous convictions, 5 of which were burglary or attempted burglary. A2 had 8 previous convictions and 6 of them were burglary or attempted burglary.

7. The learned trial judge correctly identified the usual starting point of two and a half years' imprisonment for a single count of burglary of non-domestic premises after trial. The learned trial judge, however, adopted a starting point of four years' imprisonment on account of the following aggravating factors:

(1) there were two premises involved and;

(2) the Applicants were clearly professional burglars.

8. The learned trial judge took the view that the previous sentences for burglaries received by the Applicants failed to deter them and the prevention of further repetition was necessary in the public interest, echoing what this Court said in HKSAR v. Chan Pui-chi [1999] 2 HK LRD 830.

9. Mr Andrews, on behalf of the Applicants now complains that the starting point of four years' imprisonment was excessive. In particular, it is suggested that the increase of the starting point by one third in order to deter the Applicants from repeating the offences in the light of their previous convictions is wrong in principle.

10. A defendant should not, of course, be punished for previous offences for which he has already served the penalty. But if a defendant were to repeatedly commit offences, particularly similar offences and demonstrated a complete disregard for the law, the Court is entitled to treat such affront to the law as an aggravating factor with a view to the protection of the public from yet further repetition.

11. As the learned trial judge quite rightly pointed out, this is indeed a very bad case of the type.

12. The Applicants acted in concert to burgle two premises obviously in pursuance of a premeditated plan. Properties worthed almost $70,000.00 were taken after causing significant damage to the premises with instruments.

13. From their previous records and the manner in which the burglaries were committed, the learned trial judge was right in saying that the Applicants were professional burglars and habitual ones, too. Their previous records indicated that this was not the first time they committed offences together.

14. Persistent offenders who show no interest in attempts to rehabilitate them will face longer sentences.

15. The learned trial judge was perfectly entitled to adopt a higher starting point. The Applicants are indeed serious threat to society.

16. Mr Andrews suggests that the Applicants had shown genuine remorse by pleading guilty to the charges. We are slightly skeptical about such suggestion. There was certainly no remorse after the previous 5 or 6 occasions when they were convicted of similar offences.

17. In any event, the Applicants had been given the full one-third discount.

18. The four years' starting point is a tough sentence and is perhaps on the high side but we are not persuaded that it is wrong in principle.

19. The ultimate sentences of 32 months' imprisonment are certainly not manifestly excessive.

20. We see no justification to interfere with such sentences. The applications for leave to appeal by both Applicants are therefore refused.

Representation:

Mr Robert Andrews, instructed by Director of Legal Aid, for the Applicants

Ms Mary Sin, Senior Assistant Director of Public Prosecutions and Ms Ada Chan, Government Counsel, for the Respondent