Read the full judgment text of CACC 000207/2006 on BabelCite. This Court of Appeal judgment was delivered on 9 November 2006 before 袁家寧.
Criminal law – burglary – sentencing – leave to appeal against sentence – two counts of burglary committed shortly after release from prison, one during the bail period for the other – guilty plea – whether sentencing starting points were manifestly excessive – whether Leung Tong & Another [2001] 1 HKLRD 526 was directly comparable. The applicant, who had a prior burglary conviction, was released from prison and on 10 December 2005 burgled a housing estate management office. While on bail, on 14 February 2006 he burgled a dwelling and stole a mobile phone, cash, and a ring worth over HK$3,000. He pleaded guilty in the District Court to two counts of burglary and was sentenced by Deputy District Judge 沈智慧 to a total of 3.5 years' imprisonment, comprising 2 years on the first charge and 3 years on the third charge, with 1.5 years of the third-charge sentence to run concurrently. The sentencing judge adopted 3 years as the starting point for the first charge and 4.5 years for the third charge, uplifted from the usual 3-year starting point for residential burglary because of the aggravating features of the offence. The applicant sought leave to appeal, contending that the offender in Leung Tong & Another [2001] 1 HKLRD 526 was a professional burglarger acting in concert, and that the applicant's starting point should accordingly be lower. Held, dismissing the application: Leung Tong was distinguishable because the offender in that case had not committed residential burglary and had not reoffended while on bail. The uplift in starting point to 4.5 years for the third charge was justified by the applicant's persistence in similar offending shortly after release from prison and his commission of the third charge while on bail for the first. The overall sentence of 3.5 years was not manifestly excessive or contrary to sentencing principles. Leave to appeal refused, with the applicant notified of his right to renew the application before the Court of Appeal, which retains power to increase the sentence or order a deduction of time.
Legal issues: Whether sentence for two counts of burglary was manifestly excessive or wrong in principle
Outcome: Leave to appeal against sentence refused.