The Queen v. Wong Pak Lam

IN THE COURT OF APPEAL

(Criminal Jurisdiction)

CRIMINAL APPEAL NO. 509 OF 1986

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BETWEEN

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Coram : Hon. Silke, J.A., Power, J. and Penlington, J. in Court

Date of hearing: 27th February 1987

Date of delivery of judgment : 27th February 1987

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JUDGMENT

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Penlington, J.

1. This is an application for leave to appeal against sentences for burglary.

2. The facts, as agreed, were that on the 3rd of June 1986 the applicant broke into a hut in Hoi Pong Village, Sandy Bay, Western District, and stole a diamond ring, a wrist watch, a camera, a platinum ring and two camera lenses. Similarly, on the 5th of June, two days later, the applicant broke into another hut in the same area. The occupant had left the home at 1 o'clock in the afternoon arid on her return found that a gold ring, a pair of earrings and a cassette recorder were missing. The applicant pawned to stolen items to pawnshops and on four occasions gave a false address to the pawnbroker. He was arrested on the 11th of July and admitted these offences to which he pleaded guilty at trial.

3. What clearly was foremost in the mind of the sentencing judge was that not only had the applicant committed these offences but he has an appalling criminal record going back to 1973. He has been to training centre and then served a succession of increasing prison sentences. In fact it was only on the 26th of April, very shortly before he committed these offences, that he was released from prison having served a sentence of 4 years 9 months for burglary. It is clear that he is a professional burglar. It is extremely likely that, whatever we do, he will spend a great deal of the rest of his life in prison; that is a choice which he seems to have made, sad though it maybe for a young man of 29. Mr Hemrilings with his usual eloquence has tried to persuade us that notwithstanding the fact that this man has such an bad record, we should look at the actual offences which had been committed and at the totality of the sentences passed. Those sentences were 2 years 9 months for each of the burglaries and 1 month for the giving of false information, all sentences to be consecutive. Mr Hemmings says that when one looks at the totality of 5 years and 10 months that is wrong because such a sentence would be the appropriate one for a really serious crime such as robbery. Here the offences were committed in the daytime, there was nobody in the premises when they were broken into, nobody has been injured, the occupants lost their property but most of that has now been recovered. He has referred us to various English authorities and to dicta of this Court in R. v. Woo Kau[1].

4. It is clear that the concept of preventive dentention, which was embodied in English legislation for quite some time, whereby a persistent offender could be simply put away so that he would not offend again, has now fallen into disuse, and there is certainly no legislation in Hong Kong along those lines. The object of any sentence is first of all to deter the offender and also other members of the public likely to commit that sort of offence. The second effect of it, not so important but nevertheless present; is that during the period of his detention, the offender cannot offend again. Here quite clearly that second aspect was the one that the sentencing judge has considered to be most important.

5. In Woo Kau this Court said ''Previous convictions merely disentitle a defendant to any sympathy from the Court. They are not a ground for increasing the normal sentence for the offence." We are satisfied that the Court should look at each of these offences and decide what is a proper penalty and, then, bearing in mind all the circumstances, including the defendant's record, decide whether the sentences should be consecutive or concurrent. In each of these offences of burglary, the amount stolen was not great but it was no doubt all of value that could be obtained from these huts. They were modest dwellings but nevertheless were the homes of the occupants and huts of that sort must be very difficult to protect.

6. We considered that after trial for each of these burglaries a proper sentence would have been one of 4 years' imprisonment and on a plea of guilty, 3 years'. These were quite separate offences and the sentences should be consecutive. That would result in a total sentence for the burglaries of 6 years which, even bearing in mind the applicant's record, we consider to be excessive. So far as the burglaries are concerned, therefore, we propose to allow the application, treat this as the hearing of the appeal, and reduce the sentence in each of those to 2½ years' imprisonment, each to be consecutive. In respect of the giving of false information to the pawnbrokers, that was part of the act of disposal of the goods which had been taken and the sentences passed should be concurrent. We therefore also order that the sentences on those charges (the 3rd, 4th, 5th and 6th charges) be concurrent with each other and with the other two.

Mr John Hemmings (D.L.A.) for Applicant

Mr I.G. Cross, S.A.C.P. for Respondent

[1]  Criminal Appeal No. 422 of 1986