HKSAR v. Tong Kim Man

CACC000478/1998

CACC 478/1998

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 478 OF 1998

(ON APPEAL FROM DCCC 851/1998)

------------------------

Coram: Hon. Nazareth, V.-P., Mayo and Stuart-Moore, JJ.A. in Court

Date of hearing: 23 February 1999

Date of delivery of judgment: 23 February 1999

----------------------

J U D G M E N T

----------------------

Mayo, J.A. (giving the judgment of the Court):

1. The Applicant pleaded guilty to 3 counts of burglary and 1 count of attempted burglary in the District Court before Deputy Judge Li. He was sentenced to a total of 35 months imprisonment. He seeks leave to appeal against the sentences imposed upon him.

2. The facts were simple.

3. On three occasions between 19th May and 3rd June 1998 the Applicant broke into restaurant premises at night on the Tin Tsz Estate and stole the cash takings from the restaurant. The proprietor of the restaurant made successive reports to the police. As a consequence of this special precautions were taken by the police. The Applicant again entered the restaurant on 4th June 1998 and was arrested by the police. He was co-operative and admitted all the offences. The total amount of cash stolen was approximately $77,000.

4. The Judge had this to say when passing sentence:

"You repeatedly committed the same offence within a short period of time. I regard this as an aggravating feature in this case.

I noted your personal background and the fact that you were in financial difficulty. However, I do not see any strong mitigating factor in your favour. You have previous similar convictions. You should be aware of the consequence of further offence. You resort to commit criminal offence to ease your financial situation is totally unacceptable.

The authorities are clear that a 2 1/2 years' starting point is appropriate. I noted your guilty plea and I will give you a one-third discount, there being no other factors which warrant further reduction.

For the 1st charge, starting point 2 1/2 years, I deduct one-third from that. The sentence is 20 months' imprisonment.

2nd charge, similarly, 20 months' imprisonment.

3rd charge, also 20 months' imprisonment.

4th charge, although this is an attempt but I do not see any grounds to make any distinction, so 20 months' imprisonment.

However, taking into account the totality principle, I would make the following order:

I order that 5 months of the 2nd charge be consecutive to all other charges and the remainder sentence of the 2nd charge concurrent with others.

Similarly, for the 3rd charge, 5 months of the sentence of the 3rd charge to be consecutive to all other charges and the remainder concurrent with others.

Similarly, the 4th charge, 5 months consecutive to others and the remainder concurrent with others.

In other words, you have to serve a total of 35 months' imprisonment."

5. Mr. Valentine Yim who appears for the Applicant submitted that the total sentence was manifestly excessive.

6. He accepted that 2 1/2 years imprisonment was the correct starting point for a burglary of non-domestic premises. It was his contention however that in adopting the totality principle the Judge had failed to sufficiently discount the overall sentence to be served.

7. We agree that the correct approach to adopt is to have regard to the overall criminality of the Applicant. Here there were three burglaries and one attempted burglary all of which were committed over a short period of time. It is common ground that the Applicant was entitled to the usual 1/3 discount for his pleas. This means that the overall starting point must have been 52 1/2 months imprisonment.

8. While this was undoubtedly a high starting point we are not persuaded that it was manifestly excessive in all of the circumstances of this case.

9. This being so the application is dismissed.

Representation:

Mr. A.A. Bruce, S.C. S.A.D.P.P. & Ms Anthea Pang, S.G.C. (D.P.P.) for Respondent

Mr. Valentine S.T. Yim assigned by D.L.A. for Applicant