HKSAR v. Kung Suen

CACC000053/1998

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

1998, No. 53
(Criminal)

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

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

Date of hearing: 4 June 1998

Date of delivery of judgment: 4 June 1998

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

J U D G M E N T

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

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

1. The Applicant pleaded guilty to two counts of burglary and one count of remaining in Hong Kong without the permission of the Director of Immigration. He received a total of 3 1/2 years' imprisonment.

2. The burglaries in question arose one after the other at residential premises in Shatin in the early hours of the morning. The victim of one of the burglaries saw a man escaping from his toilet window down a drainpipe. He made a report to the caretaker and the police. A team of police officers arrived shortly after this and the Applicant was found in possession of the articles which had been found missing at the two premises which were burgled.

3. The Judge adopted a starting point of 3 years for each of the burglaries. However adopting the totality principle he used as his starting point 5 years' imprisonment. He gave the Applicant 18 months off to reflect the guilty pleas and tailored all the sentences to give a total sentence of 3 1/2 years' imprisonment.

4. In the perfected grounds of appeal against sentence complaint is made that 5 years total imprisonment was excessive as a starting point and failed adequately to reflect the fact that the burglaries were a series in the same transaction.

5. While there is considerable force in that argument we consider that 3 1/2 years' imprisonment was the correct totality for all these offences taking into account the various factors involved.

6. We dismiss the application.

Representation:

Mr. W.S. Cheung, D.P.G.C. & Miss Denise Chan, S.G.C. (D.P.P.) for Respondent

Mr. Walter Lau assigned by D.L.A. for Applicant