The Queen v. Ho Ming Sun and Another

CACC000461/1989

BETWEEN

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Coram: Hon. Yang, C.J. & Hon. Power, J.A.

Date of Hearing: 2 May 1990

Date of Judgment: 2 May 1990

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JUDGMENT

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Hon. Yang, C.J.:

1. The second applicant Ho Ming-sun and the third applicant Ip Cheung-ching pleaded guilty to a number of charges of burglary before Judge Baily and were sentenced to a totality of 4 years' and 5½ years' imprisonment respectively.

2. The applicants were caught red-handed during the burglary, the subject matter of the 1st charge. The value of items taken was some $8,000.

3. At the police station, the applicants were questioned about a number of other burglaries committed in the same area, namely, Tsim Sha Tsui in Kowloon. The second applicant admitted the burglaries charged under Charges 1, 2 and 4 in his cautioned statement and the third applicant admitted the burglaries in Charges 2 to 5 in his cautioned statement. The only evidence against the applicants on these Charges was the cautioned statements.

4. The 2nd charge concerned the second and third applicants. Belongings to the value of $13,300 were stolen in domestic premises.

5. The 3rd charge concerned property to the value of $49,000 stolen by the third applicant alone, also in domestic premises.

6. The 4th charge concerned items valued at some $160,000 stolen by the second and third applicants in domestic premises.

7. The 5th charge concerned the third applicant only and ornaments valued at $200 were stolen from domestic premises.

8. The period in which the five burglaries were committed spanned from early October 1988 to late February 1989.

9. The gist of Mr. McCoy's argument on behalf of the third applicant is that the totality of 5½ years' imprisonment is manifestly excessive, and that the judge erred in passing consecutive sentences on Charges 1 to 5.

10. The second applicant did not have much to say but simply asked for a reduction of the sentences on Charges 1, 2 and 4.

11. The judge in his Statement of Findings does not appear to have given sufficient weight to the confession statements made by the applicants whilst in police custody. We are of the view that credit ought to be given to them because without those statements, the police would not have had evidence to charge the applicants on those burglaries under Charge 2 to 5.

12. Taking that factor into account, then, we would reduce the totality of the sentences on the third applicant from one of 5½ years to 4½ years by making the sentences on Charges 1 and 3 concurrent. We would reduce the totality of the sentences on the second applicant from one of 4 years to one of 3½ years by reducing each of the sentences on the three Charges which he faced by 2 months.

13. The application is allowed. We treat the hearing of the application as an appeal, and allow the appeal to the extent indicated.

Representation:

Mr. G.J.X. McCoy (Andy Lo & Co.) for D3

D2 in person

Mr. Steve Chui for Crown/Respondent