Liu Chi Kwong v. The Queen

CACC000413/1975

IN THE SUPREME COURT OF HONG KONG

(APPELLATE JURISDICTION)

CRIMINAL APPEAL NO. 413 OF 1975

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Coram: Huggins & McMullin, JJ.

Date of Judgment: 29th August 1975.

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JUDGMENT

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Huggins, J.:

1. This case has given us considerable anxiety and we have, with considerable hesitation, decided to take an unusual course.

2. The Appellant pleaded Guilty to two charges of burglary. Only yesterday we had occasion to remark that we considered burglary a serious offence and one which merited severe punishment. The only difference between this case and the case we had yesterday is that the Appellant was breaking into business premises and not into residential premises, but businessmen are as entitled as anyone else to the protection of their property.

3. The Appellant has a bad record and has spent by far the greater part of the time from 1962 onwards in prison. It is, however, to be observed that his last conviction for an offence of this kind was in 1971 and that since he was released two years ago from prison he has apparently been making an effort to go straight, although on one occasion he failed to report a change of address as required by his supervision order.

4. The learned judge passed sentences of four years' imprisonment concurrent on each of the two charges. On the face of it we saw no reason to think that the offences themselves did not deserve those sentences. However, the Appellant addressed us at length on his personal circumstances and we thought it was appropriate to call for a Social Welfare report. This we now have and we are greatly indebted to the Probation Officer for the care with which he has prepared it. What we had in mind when we asked for this report was that the Appellant might have reached a turning point in his life when he would either spend the rest of his life in prison or turn over a new leaf. The only doubt about that was that, as the learned judge rightly points out, the Appellant has never been given a long term of imprisonment before. The judge may well have thought that it was time that this was tried rather than that leniency should be extended at this point. We certainly find it difficult to say that he was not entitled to that view, but we have after long deliberation decided that we ought to take a chance in this case. The Probation Officer's report is in many respects most favourable and it does appear to us that there is some prospect that probation might have a salutary effect.

5. We therefore allow the appeal, set aside the sentences which were imposed and substitute a probation order on the usual terms for a term of two years.

29th August 1975.

Representation: