HKSAR v. Cheng Wai Anthory

CACC 209/2005

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 209 OF 2005

(ON APPEAL FROM DCCC NO. 199 OF 2005)

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BETWEEN

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Before : Hon Woo VP in Court

Date of Hearing : 12 August 2005

Date of Judgment : 12 August 2005

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J U D G M E N T

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1.The applicant was convicted on his own plea before Judge Whaley in the District Court on 20 April 2005 of four charges.  Two of the charges, Charges 1 and 4, were for handling stolen goods, contrary to section 24 of the Theft Ordinance, Cap 210.  The other two charges, Charges 2 and 3, were for burglary, contrary to section 11(1)(b) and (4) of the same ordinance.

2.The judge adopted a starting point of 2½ years’ imprisonment for each of the handling charges and 3 years for each of the burglary charges.  He gave a full one-third discount for the applicant’s plea of guilty to each of the charges, resulting in sentences of 20 months of imprisonment for Charge 1, 24 months for Charge 2, 24 months for Charge 3 and 20 months for Charge 4.  He ordered that 12 months of Charge 2, 12 months of Charge 3 and 10 months of Charge 4 to run consecutively to the sentence imposed on Charge 1.  The overall sentence was therefore 54 months or 4 years and 6 months.

3.In his notice of application, the applicant complains that his sentence is heavier than those imposed on defendants of cases of similar nature, and thus he feels that the sentence is unfair to him.

4.The four charges all related to burglaries that took place in various flats in the same building of a public housing estate in Tung Chung, in which building the applicant also resided.  They all occurred when the occupants had left the flat unattended for a few hours, only to return to find the locked iron grille and wooden door of their flat having been prised open, the place ransacked, and their belongings disappeared.

5.Charge 1 related to goods stolen from such a burglary, including cash, worth about $15,000 in total.  The burglary took place on 21 November 2004.  Charge 2 occurred on 10 December 2004, and cash and gold ornaments worth a total of over $10,000 were lost. 

6.Charge 3 occurred on 17 December 2004, and the occupants found cash and jewellery and other items, worth almost $40,000, were missing. 

7.Charge 4 related to goods stolen from another burglary between 23 and 28 December 2004, during which period the occupants were away on holiday.  A notebook computer and gold ornaments worth just over $8,000 were lost. 

8.The applicant was exposed when he had sold the notebook computer to a second-hand goods dealer who was queried by a security guard of the building after leaving the home of the applicant in which the deal took place.  In the home of the applicant, a guitar under Charge 1 was found.

9.In his reasons for sentence, the judge said :

“	10.	The defendant is 26 years of age.  He had a poor record, including 3 previous convictions for burglary, one for attempted burglary and 3 for theft, and two previous convictions for handling stolen goods. …
	11.	The court should impose proper sentences for offences of this sort to ensure that the members of the public are protected from the likes of the defendant preying upon them in their homes….”

10.In fact, the three previous convictions for burglary as described by the judge included five charges of burglary.  There were altogether seven previous occasions when the applicant, born on 13 April 1979, was convicted of similar crimes of dishonesty, the first of which was on 23 November 1992 when he was about 13½ years old.  He was then convicted of burglary.  On 23 March 1993 when approaching 14 years of age, he was convicted of another two charges of burglary.  He was further convicted of theft when he was 15 years old, two burglaries when he was 19 years old, one attempted burglary and one theft when he was 22, and when he was 24 he was convicted once for a theft, and another time for 2 charges of handling stolen goods. 

11.I mention these bad records because the overall sentence of 4 years and 6 months imposed by the judge on the applicant might, when the totality principle is considered, be said to be on the high side, but bearing in mind the bad records, the judge’s taking into account the necessity of protecting members of the public from persons like of the applicant preying upon their homes was fully justified.  See HKSAR v Chan Pui Chi [1999] 2 HKLRD 830, at 834.

12.In view of the fact that each of the four burglaries took place on different dates involving four different flats being burgled and the bad records of the applicant, I consider that the overall sentence of 4½ years imposed by the judge was neither wrong in principle nor manifestly excessive.  It is not reasonably arguable otherwise.  I therefore refuse leave to appeal against sentence.

14.I advise the applicant that he may make a fresh application within 14 days to this Court.  However, I warn the applicant that the Court can increase sentence in such an event.

Mr Marco Li, SGC of the Department of Justice, for the Respondent

The Applicant, in person