HKSAR v. Chan Li Fat

CACC180/2005

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO.180 OF 2005

(ON APPEAL FROM DCCC 1351 OF 2004 AND DCCC94 OF 2005)

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BETWEEN

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Before : Hon Stuart-Moore VP and Burrell J in Court

Date of Hearing : 28 October 2005

Date of Judgment : 28 October 2005

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J U D G M E N T

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Hon Burrell J (giving the judgment of the Court) :

1.On 13 April 2005, the applicant pleaded guilty before Deputy Judge Tallentire in the District Court to two charges of burglary, contrary to section 11(1)(b) of the Theft Ordinance, Cap. 210.

2.The burglaries were of domestic premises and had been committed five days apart on 30 October and 4 November 2004.  The total value of the property stolen was in the region of $100,000.

3.On the 1^st charge the burgled premises had been ransacked and none of the stolen property was ever recovered.  On the 2^nd charge, the premises were not ransacked and the stolen property was recovered.  When arrested the applicant was in possession of a knife which, it was accepted, was for use in gaining entry to the premises and no more.

4.The judge took 3 years as a starting point for each offence.  He gave a full discount for the plea of guilty making 2 years in each case.  He made the sentences partially consecutive.  He said that 16 months of the second term of 2 years should be served consecutively to the first term of 2 years making a total sentence of 40 months.

5.The applicant now seeks to appeal that sentence.  Mr Steven Kwan, on the applicant’s behalf, does not ask this court to interfere with three aspects of the sentence.  He accepts, firstly, that 3 years for each offence was not too high as a starting point; secondly, that a discount of one-third was appropriate; and thirdly, that part of the sentences should be served consecutively.

6.The only remaining issue therefore, and the only subject matter of this application, is the length by which the judge overlapped the two sentences, namely 16 months.  Mr Kwan submits that the overall sentence should not have exceeded 36 months and that only about 12 months should have been ordered to be served consecutively.

7.The judge when sentencing noted the applicant’s very poor record.  He had committed very serious robberies and assaults in the past.  In 1983, he was sentenced to 10 years’ imprisonment for robberies and indecent assault.  In 1994, he was sentenced to 16 years’ imprisonment for robberies and rape.  He was released from this last sentence in July 2004 and he committed the present offences just four months later.  The judge also correctly took into account his pleas of guilty and such other minor mitigation that there was.

8.The argument set out in Mr Kwan’s written submissions that the applicant had not been convicted of a burglary before and therefore was a first offender as far as burglary was concerned is a non-point.  The fact is that the applicant is an habitual offender of very serious offences of dishonesty and violence.  The judge would not have been criticized had he chosen a slightly higher starting point.

9.However, on this appeal we are not concerned with the starting point of 3 years nor the discount of one third for the guilty plea.  We are concerned solely with the issue of totality.  The 40 months’ sentence reflects a total sentence of 5 years after trial.  The question

therefore, is : would that have been manifestly excessive in the event of a not guilty plea followed by a conviction?

10.The factors that would have been taken into account in such circumstances would have been these :

(a) two serious offences of domestic burglary had been committed, five days apart;

(b) the applicant’s previous record shows him to be a menace to society;

(c) one of the flats was ransacked;

(d) a knife was being carried to effect entry; and

(e) the property stolen was a not insubstantial amount of cash and valuables, much of which remains unrecovered.

11.A number of authorities were cited to the judge below and also referred to this court for comparative purposes.  We have considered them but they are of limited value.  Moreover, to recite, in this decision, the differences and similarities is not a worthwhile exercise because having noted them, we are satisfied that a sentence of 5 years after trial on these facts for this applicant was within an acceptable range.  A one-third discount for the pleas of guilty resulted in a 40-month overall sentence.  We do not regard this as being manifestly excessive.

12.That being the case, the route whereby that result was achieved by the judge is of little consequence.  His sole objective in selecting 16 months as the consecutive part of the sentence was to apply the principle of totality correctly.  This he achieved.

13.The application is dismissed.

Mr David C. Leung, SGC, of the Department of Justice, for the Respondant

Mr Steven Kwan, instructed by Hong Kong Bar Association’s Free Legal Service Scheme, for the Applicant