The Queen v. Hui Kwong Ming

CACC000487/1987

IN THE COURT OF APPEAL

BETWEEN

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Coram: Hon Silke, V.-P., Barker & Hunter, JJ.A.

Date of Hearing: 19th January 1988

Date of Judgment: 19th January 1988

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J U D G M E N T

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Silke, V.-P.:

1. Hui Kwong Ming was convicted upon his own plea of two offences: burglary and attempted burglary: before His Honour Judge Corcoran in the District Court.

2. Both these offences took place on 23rd August 1987 and in the same neighbourhood. Both were petty offences in the sense that nothing substantial was taken either from the premises he entered or the one he attempted to enter.

3. On the first charge, he had been found in the living room of the flat. He was apprehended by the owner and he showed him his identity card. On the second charge, the door was prized open and his prints were found there

4. When this matter first came before us we were told that he had a conviction of more recent origin than the dates of either of these offences. We adjourned the matter to ascertain the details of that more recent conviction which was also for burglary and further as to whether the sentencing judge was aware of this.

5. What seems to have happened was this On 25th August when he appeared in the Magistracy in relation to these two present offences he was released on bail; then, while on that bail, he was arrested on 30th August for an offence on that day and was convicted on 1st September. That conviction took place in the Magistracy and he pleaded guilty.

6. The trial judge here does not now recall if, as he puts it, he "had fully in his mind" the sentence of 18 months' imprisonment imposed upon conviction on 1st September in the Magistrate's Court. For the offences here he was sentenced on 23rd September to 4½ years' imprisonment on each, concurrent. He has a history of offences going back to 1951, the majority of them of a similar nature. He is obviously a sneak thief and he is a more of a social nuisance than anything else for we have no evidence that he carried weapons or used violence; certainly not in these offences.

7. The effect of the sentences passed here combined with the sentence in the Magistrate's Court would mean that he would serve a total of 6 years' imprisonment. We are aware of that which was said in The Attorney v. Cheung Yui Man⁽¹⁾ where the Court was considering what it had thought to be "the worst type of burglary". The offences here were manifestly not. We are of the view that, taking into consideration the facts of three convictions, a totality of 4 years would not be excessive. To achieve that totality, we would grant leave to appeal, allow the appeal, reduce the sentences in this case to 21/2 years each concurrent to be served consecutive to the 18 months imposed on 1st September 1987. This effectively gives a total of 4 years' imprisonment.

(1) Application for Review No. 16 of 1985

Representation:

Applicant - in person

I.G. Cross, Esq. for Crown/Respondent