HKSAR v. Cheung Chun Kwan

CACC000432/1998

CACC 432, 433 & 434/1998

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 432, 433 & 434 OF 1998

--------------------------------

Coram: Hon. Nazareth, Ag. C.J.H.C., Mayo and Stuart-Moore, JJ.A. in Court

Date of hearing: 27 January 1999

Date of delivery of judgment: 27 January 1999

----------------------

J U D G M E N T

----------------------

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

1. The Applicant pleaded guilty in these three cases to one count of theft, three of burglary and one of remaining in Hong Kong without the permission of the Director of Immigration. He was sentenced by H.H. Judge Toh who took the pleas in all the cases to a total of 62 months imprisonment. He now seeks leave to appeal against the total sentence passed.

2. The sentences can be summarised in this way.

3. In CACC 432/1998 there was one count of theft, one count of burglary of domestic premises and the immigration offence. The Judge imposed a sentence of 3 months on the theft count. The burglary was of domestic premises. The Judge adopted a starting point of 3 years and gave the Applicant the usual 1/3 discount and ordered that the sentence should be served consecutively to the theft count. She imposed the usual sentence of 15 months imprisonment for the immigration offence and ordered that 8 months of the sentence should be served concurrently with the other sentences.

4. In CACC 433/1998 was a burglary of church premises which the Judge treated as non-domestic premises. She sentenced the Applicant to 18 months imprisonment having adopted 30 months as the appropriate starting point. She ordered that 8 months of the sentence should be served concurrently with the sentences imposed in CACC 432/1998.

5. Finally in CACC 434/1998 which was a case of one count of burglary of domestic premises. She adopted three years as the starting point and only gave the Applicant 6 months' remission for his guilty plea. No reason was given for this departure from the usual practice. She ordered that 12 months of the sentence should be served concurrently with the sentences passed in the other two cases.

6. We consider that the overall sentence was too severe in all the circumstances. If the Applicant is given the full 1/3 discount in CACC 434/1998 this would lead to a deduction of 6 months from the total sentence to be served. This we consider would be an appropriate sentence.

7. Treating the application as the appeal we order that in CACC 434/1998 the sentence of 30 months be reduced to 24 months, 12 months of which will be served concurrently with the sentences imposed in the other cases. This leaves a total sentence of 56 months or 4 years 8 months. To this extent the appeal is allowed.

Representation:

Mr. Jackson Poon, S.G.C. (D.P.P.) for Respondent

Mr. Paul Leung assigned by D.L.A. for Applicant