HKSAR v. Chow Siu Chuen

CACC 492/2004

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 492 OF 2004

(ON APPEAL FROM DCCC NO. 1018 OF 2004)

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BETWEEN

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Before : Hon Stuart-Moore V-P and Stock JA in Court

Date of Hearing : 22 April 2005

Date of Judgment : 22 April 2005

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J U D G M E N T

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Hon Stock JA (giving the judgment of the Court):

1.This is an application for leave to appeal against sentence.  The applicant pleaded guilty before Judge Li in the District Court to one charge of burglary.  He was sentenced to a term of twenty eight months’ imprisonment and the judge ordered that sentence to run consecutively to a term of two years’ imprisonment which had been imposed in another court for an earlier offence of burglary.

2.During daylight hours on 6 July 2003 the applicant entered domestic premises in Tseung Kwan O gaining access by prising open a door.  He ransacked the premises.  He stole cash in excess of $160,000; seven watches; a diamond necklace; twenty gold ornaments; a camera; gold bracelets; two diamond bracelets; a diamond fingering and sunglasses.  He was arrested on 11 February 2004 as a result of DNA testing on some cigarettes found at the premises.  Upon his arrest he told the police that he had spent all the cash and sold the jewellery.  Nothing has been recovered from this burglary.

3.He appeared before the District Court on 6 November 2004 in relation to this offence when aged 29 years.  For someone of that age – indeed for anyone – he has an appalling criminal record; including several offences of theft, an offence of conspiracy to rob, as well as several offences of violence.

4.On 5 November 2003, he was sentenced in the District Court to a term of two years’ imprisonment for a burglary committed on 8 June 2003, that is, one month before the burglary we have described.  The burglary committed on 8 June was also at domestic premises which he ransacked.  The applicant had gained access with the use of an iron saw and crowbars and he stole cash, a digital camera and a mobile telephone all to the value of approximately $26,000.  He was arrested for that offence on 26 August 2003 and, again, none of the stolen property was recovered.

5.In sentencing for the later offence, the judge acknowledged that the normal starting point for burglary of domestic premises was three years’ imprisonment.  However, given the substantial loss occasioned to the victim in this case and the ransacking of the premises and the further fact that he was a repeat offender, the judge took a starting point of three and a half-years’ imprisonment.  He gave full credit for the plea of guilty and for this offence sentenced the applicant to a term of twenty eight months’ imprisonment.  No complaint is made about that aspect of the sentence.

6.In relation to a term of two years’ imprisonment imposed in November 2003, the judge ordered the term of twenty eight months to run wholly consecutively to the term of two years’ imprisonment.  It is this aspect of the sentence at which this application is directed.  Mr Leo Chan, for the applicant, says that the appropriate overall starting point for two burglaries of domestic premises committed by a first offender in circumstances that are not aggravated is one of three and a half years’ imprisonment.  The authority which he cites in support of that proposition is not, with respect, to that effect.  It is a case that turned entirely upon its own facts and establishes no general principle.  In his written submissions, he contends further that the judge ought to have stated what the starting point would have been had the two offences being heard together.  We do not think in the circumstances that this was necessary.  What the judge was required to do was to conduct a proper exercise in relation to sentencing for the July 2003 offence, give an appropriate deduction for the plea of guilty in relation to that, and then deal with the question of totality.

7.There has been no error in principle by the judge, in that these two burglaries, being entirely unconnected, were bound to render the sentences consecutive subject only to the question of totality.  The issue we have to address is whether that totality was manifestly excessive.  These were serious burglaries of their kind in which substantial quantities were stolen, none of which was recovered and each of the premises subjected to ransacking and we note in relation to the present case that the judge described the applicant’s conduct correctly as vandalisation, and that whilst at the premises the applicant smoked cigarettes as well as drinking a bottle of the resident’s wine.  There was a clear element of professionalism in these burglaries.  Whilst another court might perhaps have arrived at a slightly lower totality, we cannot say that the result is manifestly excessive and, accordingly, this application for leave to appeal against sentence is dismissed.

Mr Leo S S Chan assigned by Director of Legal Aid for Applicant

Mr Simon Tam, SGC of the Department of Justice, for Respondent