HKSAR v. Chow Keung
Read the full judgment text of CACC 478/2006 on BabelCite. This Court of Appeal judgment was delivered on 20 April 2007 before Stock JA, Burrell J.
Criminal law – sentencing – burglary – remaining in Hong Kong without authority – repeat offender – totality – guilty plea discount – consecutive sentences – Court of Appeal – leave to appeal against sentence – revision of aggregate sentence – two burglaries of differing gravity (vacant house stealing T-shirt; occupied house wearing mask, stealing cash and jewellery worth about HK$162,000) – prior conviction for robbery and immigration offence – whether aggregate of five and a half years excessive – held totality excessive – revised total of four years and nine months substituted – first burglary sentence of two years undisturbed – second burglary starting point raised to three and a half years with one-third plea credit to two years and four months, of which eighteen months consecutive to first charge – eighteen months for immigration offence left undisturbed but only fifteen months ordered to run consecutively.
Legal issues: Whether totality of sentence for two burglaries and an immigration offence was excessive
Outcome: Leave to appeal against sentence granted; appeal allowed in part; sentences revised and substituted with a total of four years and nine months' imprisonment.
Cited by 6 cases
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CACC 478/2006 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF APPEAL CRIMINAL APPEAL NO. 478 OF 2006 (ON APPEAL FROM DCCC NOS. 718 & 912 OF 2006) ---------------------- BETWEEN
-------------------- Before : Hon Stock JA and Burrell J in Court Date of Hearing : 20 April 2007 Date of Judgment : 20 April 2007 ------------------------ J U D G M E N T ------------------------ Hon Stock JA (giving the judgment of the Court): 1.This is an application for leave to appeal against sentence. The applicant pleaded guilty before Deputy Judge Yau in the District Court to two charges of burglary and to one of remaining in Hong Kong without the authority of the Director of Immigration. He was sentenced to a total term of five and a half years’ imprisonment. 2.The first burglary was committed between the evening of 29 June 2006 and sometime on 30 June 2006 at a house in Kowloon Tong which had been left vacant for some years. A door had been prised open and stolen from those premises was a T-shirt. This was the first charge. 3.The second burglary was more serious. These were occupied premises, a house in Devon Road, Kowloon Tong and the applicant entered those premises during the day when there was present a domestic helper. He was wearing a mask and he stole from the premises a considerable quantity of cash and jewellery to the value of about $162,000. This was the second charge. The third charge of assaulting the helper was not proceeded with. 4.Not long before midnight on 29 June 2006 the applicant was intercepted by the police at the border of Lok Ma Chau. He admitted that he had entered Hong Kong unlawfully a few days before (the fourth charge) and on his person were found the items that had been stolen from the house in Devon Road. 5.He is not a person of previous good character having been convicted in December 2002 of robbery, for which he was sentenced to four years and eight months’ imprisonment and also of remaining in Hong Kong without authority for which he was sentenced to 15 months’ imprisonment, nine months to run concurrently. 6.In relation to each of the burglary offences the judge took a starting point of three years’ imprisonment and imposed a term of two years on each in recognition of the plea of guilty but ordered each to run wholly consecutively to the other. Because the immigration offence was not his first offence the judge sentenced him to a term of eighteen months’ imprisonment and ordered that to run wholly consecutively to the rest of the sentence making a total of five years and six months’ imprisonment. 7.We recognise that this applicant is a repeat offender and that these offences were committed not very long after his release for a previous offence of some seriousness. Nonetheless we are troubled by the totality which we think, in the light of the pleas of guilty and the circumstances as a whole, is excessive. The nature of the two burglaries was somewhat different: the first in an empty house with a T-shirt stolen; the second being more serious given the very substantial quantity of jewellery stolen. We think a more appropriate disposition for these offences is as follows:
8.Accordingly, we grant the applicant leave to appeal against sentence, treat the application as the hearing of the appeal and allow the appeal to the extent we have indicated, substituting the terms we have particularised.
Mr Simon Tam, SGC of the Department of Justice for the Respondent Applicant in person |
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