HKSAR v. Siu Wai Ming

CACC269/2005

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO.269 OF 2005

(ON APPEAL FROM DCCC 171 OF 2005)

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BETWEEN

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

Date of Hearing : 15 December 2005

Date of Judgment : 15 December 2005

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J U D G M E N T

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Burrell J (giving the judgment of the Court) :

1.The applicant was convicted of one offence of burglary after trial before H.H. Judge Wright in the District Court and was sentenced to 3 years’ imprisonment.  He now seeks leave to appeal that sentence.

2.The burglary, which was of commercial premises, had been committed on 27 November 2004.  The facts are fully set out in the judge’s Reasons for Sentence.

3.In brief, the applicant was one of two “lookouts” and “get away” drivers who remained outside the warehouse being burgled.  A bigger group of men, about eight altogether, had broken into the warehouse where not only a burglary but also a robbery was committed by that group.  The other lookout was the 2^nd defendant before the judge.  He pleaded guilty and was sentenced to two years and eight months’ imprisonment having been given the usual discount of one-third for his plea of guilty, from a starting point of four years.  The judge had correctly noted that the 2^nd defendant’s involvement in the burglary was greater than the applicant’s.

4.The applicant had been contacted by the 2^nd defendant on an earlier occasion to lend assistance.  The judge correctly noted that the usual sentence for a single non-domestic burglary is 2½ years’ imprisonment.  Mr Francis Burkett who appears for the applicant makes, in effect, one complaint namely that the usual sentence of 2½ years should have been passed and that a longer sentence of 3 years was manifestly excessive.  He submits that there were no good reasons to pass the longer sentence than the normal one.

5.The judge gave reasons for passing a 3 years’ sentence instead of a 2½ years’ sentence.  He noted that the applicant on arriving at the scene at about 9:30 at night would have immediately appreciated that he was assisting in a planned burglary involving many burglars.  The applicant would also have appreciated that the size of burglary was such that it required two “get away” vehicles of some size.  The applicant’s participation involved him waiting outside the premises for a number of hours.

6.Mr Burkett submits that these should not be regarded as aggravating factors primarily because they did not come to the applicant’s knowledge until after his arrival at the scene.

7.We do not agree.  Firstly, if a burglary is a large scale and well-planned operation, it is a factor that should be taken into account as an aggravating feature.  Secondly, we consider the judge was correct in forming the view that these factors did come to the applicant’s mind at an early stage in his involvement.  Once he became aware of the nature of the crime in which he was participating, he took no steps to withdraw.  He continued to carry out his important role of a lookout and a driver in a large well-planned burglary for a considerable time thereafter.

8.In any event, a sentence of 2½ years is not a fixed or tariff sentence for all commercial burglaries with no aggravating features.  On any view we think that 3 years after trial for this applicant’s role in this burglary was not manifestly excessive.

9.The application is accordingly dismissed.

Mr David Leung, SGC of Department of Justice, for the Respondent

Mr Francis Burkett, instructed by Legal Aid Department, for the Applicant