The Queen v. Chui Kam Kong

IN THE COURT OF APPEAL

Criminal Appeal
No. 247 of 1987

BETWEEN

THE QUEEN

and

CHUI Kam-kong

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Coram: Hon. Yang, V.-P., Barker, J.A. & Barnes, J

Date of hearing: 1st October, 1987

Date of judgment: 1st October, 1987

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JUDGMENT

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Barker, J.A.

1. This is an application for leave to appeal against sentences of five years’ imprisonment imposed upon the applicant on three charges of burglary, such sentences having been ordered to run concurrently.

2. The offences were committed against domestic premises. During the day entrance was gained through a balcony window and two of the three premises were ransacked and property to a value of just less than ten thousands dollars was taken, some of which has been recovered.

3. This applicant was brought before the District Court and before another judge. He pleaded not guilty. There were others charged with him who pleaded guilty and were dealt with. Of the people who were with him one pleaded guilty to nine charges and was sentenced to four years' imprisonment. The second pleaded guilty to thirteen charges of burglary and was given five years' imprisonment. The third pleaded guilty to ten charges of burglary and was given four years' imprisonment. The fifth accused pleaded guilty to one charge of burglary and was sent to a Detention Centre and the sixth pleaded to six charges of burglary and was given three years' imprisonment.

4. This applicant was undergoing a period of training in a Training Centre, he having committed nine offences of burglary. What the judge said in his reasons for sentence was this:-

“It is true that he was before me for only three offences but looking at the reality of the situation I saw that the appellant's position was substantially the same as that of his second co-defendant. They had both committed not less than 12 burglaries over a period of about 6 months, and there was the aggravating factor, in the appellant's case, of his having committed two of them while on bai1 for the others, and there was the fact, small, but not wholly inconsiderable, of his not entering his plea on the earliest possible occasion after receiving legal advice. Despite that I had to give some credit for his pleas, encouraged though they may have been by having three similar dropped.”

With the very greatest respect to the learned judge, that is a wholly inappropriate way to approach sentence in this case. This applicant had already been sentenced for the nine offences of burglary which he had committed. What the learned judge had to do was to sentence him for the three offences to which eventually pleaded guilty. It is clear to us that that was not the way that he did approach it. Had he done so we are satisfied that he would have taken a wholly different course. He had before him and we have before us a Training Centre report, the last sentence of which reads:-

"In view of the fact that he is convicted of the present offences; he is young and has a supportive family. I (that is the Intake Officer) am of the opinion that a continuation of detention in a Training Centre will be beneficial to him."

5. We agree. We shall treat the application as the hearing of the appeal proper. We quash the sentence of five years' imprisonment and we make a fresh order as from today for him to be detained in a Training Centre.

Miss Susan Kwan (D.L.A.) for Applicant

J. Shaw & C.W. Yeung for Crown/Respondent