Read the full judgment text of CAAR 000005/2004 on BabelCite. This Court of Appeal judgment was delivered on 16 December 2004 before Stuart-Moore VP, Lugar-Mawson JA, Lunn JA.
Criminal law – burglary – non-domestic premises – sentencing guidelines – review of sentence under s.81A of the Criminal Procedure Ordinance, Cap. 221 – respondent, a former maintenance electrician at Shek Wai Kok Estate, retained a key to the Housing Department's main switch room of Block A, Shek Lin House after his employment terminated in mid-2002 – on 30 December 2003 he used the key to enter the premises and steal a pipe-bending machine valued at $2,000, bringing a handcart and wearing gloves – respondent pleaded guilty on 15 July 2004 in DCCC 375/2004 before Judge Sweeney, who took a starting point of 9 months and reduced it by one-third for the guilty plea, imposing 6 months' imprisonment – Secretary for Justice applied to review the sentence under s.81A – first issue: whether the judge erred in departing from the conventional starting point of 2½ years' imprisonment for burglary of non-domestic premises – held: yes – the conventional starting point already builds in a measure of planning and premeditation, and a substantial departure is justified only in wholly exceptional circumstances or genuinely opportunistic cases (per HKSAR v Sim Ka-wing, CACC 450/2000; R v Wong Man [1993] 1 HKC 80) – here, the respondent's retention of the key for 18 months, his use of insider knowledge of the estate, and his bringing of a handcart to remove a sizable item demonstrated premeditation, not opportunism – a sentence well below the guidelines could not be supported – second issue: whether to alter the sentence under s.81B – held: no – although the sentence was manifestly inadequate (a 30-month starting point reduced by one-third would have given 20 months), the respondent had subsequently been sentenced on 11 November 2004 by Judge Poon to 2 years concurrent for two further commercial burglaries committed while on bail, which she indicated would have been 28 months had the present burglary been consolidated on one charge sheet – failure to consolidate cases resulted in overall justice being done – application for review dismissed; original sentence of 6 months' imprisonment not altered.
Legal issues: Whether sentencing judge erred in departing from the conventional 2½ year starting point for burglary of non-domestic premises · Whether to alter the sentence under s.81B of the Criminal Procedure Ordinance
Outcome: Application for review of sentence dismissed; sentence imposed by Judge Sweeney not altered.
Cited by 12 cases · Cites 2 cases