Mui Hung Fan v. The Queen

CACC000496/1975

IN THE SUPREME COURT OF HONG KONG

(APPELLATE JURISDICTION)

CRIMINAL APPEAL NO. 496 OF 1975

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

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

Coram: Huggins & McMullin, JJ.

Date of Judgment: 28th August 1975.

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

JUDGMENT

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

Huggins, J.:

1. This Appellant was charged on eight charges of burglary and one of going equipped for burglary. He pleaded Guilty to all those charges and was sentenced to six years' imprisonment concurrent on the first eight and three months' concurrent on the last. The burglaries were all committed in what I might call substantial premises, i.e. premises occupied by persons of substantial means. That fact, which was referred to by counsel. I mention merely to say that it is entirely irrelevant: the important thing to be understood is that every man, whether he lives in a hovel or in a castle, is entitled to the protection of the law in the occupation of his home.

2. We think that, generally speaking, it may well be that the level of sentences recently passed for burglary is on the low side. However, we are quite satisfied that in all the circumstances of this case sentences of six years' imprisonment were not justified.

3. It is unfortunate that the learned judge may have been misled on one matter by counsel who appeared for the Crown in the court below (who was not the same counsel as has appeared before us). The judge was informed that the Appellant had an income of $1,000 a month from his father. The Appellant is a man of 44 years of age and we are told his father is over 70. Of course, it is not impossible for a wealthy man of over 70 to continue to pay his son a handsome monthly allowance. It is perhaps unusual. We are told in this Court that there was a misunderstanding. Counsel for the Crown says there is nothing in the papers before him to justify this particular statement, and, although we do not say that counsel in the court below was not justified in what he said, we think it is proper in this Court to assume that it was not correct as we are assured by counsel for the defence that the Appellant says it is not correct. It is an important point because the learned judge made much of it - as is to be expected: he commented that this was not a case of a person who was poverty stricken and driven to crime as a means of subsistence. That is one point which is in favour of the Appellant.

4. It is commented that the sentence passed was out of line with the general level of sentences, not necessarily only those for burglary. We have already commented on the level of sentences for burglary and we are not greatly impressed by the fact that there has been a number of cases in which lower sentences for that offence have been passed, but it is pointed out that there have been violent robberies and the like and embezzlements of large sums of money running into hundreds of thousands of dollars where the sentences have been less than that passed on the Appellant. This, we think, is a matter which we ought to take into account, but at the same time we do not accept that the Appellant is entitled to much consideration for the fact that no injury was done to the person of any of the victims. It is to be noted that in 1966, when he committed his last series of burglaries, he was convicted of wounding with intent to resist arrest. It is all too common that persons who break into premises, when they are disturbed, violently resist, and this is something which one has to take into account when considering the proper sentence on burglars. We are told that in four of the cases before us the Appellant gained access to the premises by breaking windows. In others the windows through which he gained access were not secured. We do not know whether they were in every case windows in rooms which were occupied as bedrooms by the owner of the house. It was suggested to us - and speaking entirely for myself I am quite unable to accept this argument - that it is the duty of householders to make their houses impregnable. That was the burden of the argument. We cannot all live in castles with moats and armed-sentries. People are entitled to sleep in bedrooms with the windows open to get fresh air and they are entitled to sleep in peace and to know that their property is safe.

5. However, taking everything into consideration we think that the proper sentence in this case was one of four years' imprisonment on each charge concurrent for the first eight charges. Treating this as the hearing of the appeal we allow the appeal and alter the sentences accordingly.

28th August 1975.

Representation: