Read the full judgment text of CACC 000447/1998 on BabelCite. This Court of Appeal judgment was delivered on 23 April 1999 before Nazareth V-P, Mayo JA, Rogers JA.
Criminal law – Sentencing – Burglary – Community service orders – Whether sentencing judge erred in principle by regarding himself as precluded from imposing a community service order on the basis that the offence was serious and a custodial sentence was inevitable – Community Service Orders Ordinance (Cap. 378) s.4 – Whether community service order is an alternative to custodial sentence – Criteria for suitability set out in R v Brown (1981) 3 CrAppR(S) 294 adopted – Secretary for Justice v Li Cheuk Ming [1999] 1 HKLRD 63 considered – D1 and D2 convicted after trial in the District Court of burglary of a beauty house on the 8th floor of a commercial building in Mong Kok at about 4 am on 1 April 1998; goods valued at about HK$60,000 were recovered – D2 additionally convicted of possessing an identity card belonging to another – D1 sentenced to 2½ years' imprisonment (starting point 2 years 9 months, 3 months deducted for clear record) and D2 to 2 years 9 months on the burglary charge and 12 months (6 months concurrent) on the identity card charge, total 3 years 3 months – Both applicants sought leave to appeal against sentence only, having abandoned their conviction appeals – Held, allowing D1's appeal and substituting a community service order: (1) the sentencing judge erred in principle in regarding himself as precluded from imposing a community service order simply because burglary was a serious offence and a custodial sentence was inevitable; (2) under s.4 of the Community Service Orders Ordinance, a community service order is an alternative to a custodial sentence, not an additional option available only after custody is found unnecessary; (3) the Brown criteria for offenders best suited to community service orders are alternatives, not cumulative; (4) D1 met all six Brown criteria – first offender, stable and exceptionally supportive home background, good work record, ran his own transport business with a realistic prospect of continued custom, showed remorse by abandoning his conviction appeal, and presented no more than a slight risk of reoffending – D2's out-of-time application for leave to appeal against sentence dismissed, the court finding no misdirection, no error of principle, and the sentence not manifestly excessive; D2 had played the major part in the offence, and his bare allegation of inadequate legal representation was unsupported.
Legal issues: Whether sentencing judge erred in principle by declining to consider a community service order for burglary · Whether D2's out-of-time application for leave to appeal against sentence should be granted
Outcome: D1's appeal against sentence allowed; custodial sentence set aside and community service order to be substituted. D2's out-of-time application for leave to appeal against sentence dismissed.
Cited by 18 cases