R. v. Tam Cho Wing and Another

CACC000666/1994

IN THE COURT OF APPEAL

1994, No. 666
(Criminal)

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Coram: Power, C.J. (Ag), Litton, V.-P. and Bokhary, J.A.

Date of hearing: 11 May 1995

Date of judgment: 11 May 1995

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J U D G M E N T

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

1. These are applications for leave to appeal against sentence. They come to us from the District Court where these two applicants jointly faced four charges. Three of those charges were of theft. One was of going equipped for stealing.

2. The trial took place before Deputy Judge Candy. On November 29 last year, he convicted both applicants on all four charges. Both are men in their early 20's who have been in trouble with the law before this. But such previous trouble was, it must be said, less serious than the trouble they got into this time.

3. Reports were sent for and considered before sentencing took place.

4. On December 13 last year, the judge sentenced each applicant to 19 months' imprisonment. That was by way of four consecutive terms. Those terms were of six months on each of the theft charges and of one month on the going equipped charge.

5. Each theft was committed on the same day in September 1993. On that day, the applicants went to three amusement games centres one after another. They prised open coin-operated games machines and took about HK$200 from each of those three centres.

6. The going equipped offence was committed in the following month. They were going off to do what they had done before.

7. One ground of appeal has been advanced. It reads:-

"The Learned Deputy Judge erred in not giving sufficient allowance to the fact that the [three instances of theft] were committed on the same occasion, and they reflected no more than a continuous course of conduct. In the premises, the consecutive jail terms passed on those charges seem to be too severe and excessive."

8. In his reasons for sentence, the judge said this:-

"... For the Theft charges I take the starting point for sentence as 18 months imprisonment overall. The starting point for Going Equipped For Stealing is three months imprisonment."

9. He gave effect to that by consecutive term of six months on each of the three theft charges (thus arriving at the 18 months which he considered appropriate) and of one month on the going equipped charge (taking two months off the three months which he considered appropriate to that charge on its own, doing so on the totality principle).

10. It seems to us that the judge has approached his task on correct principles. But after careful consideration, we have come to the conclusion that 18 months for the three instances of theft was, all things considered, not merely severe but actually beyond the appropriate range. The offences were by no means trivial. But they were not so serious as to warrant as much as 18 months for these two men.

11. What we propose to do is this. For each of the consecutive six-month terms we will substitute consecutive terms of four months. And that is how we give effect to our view that the 18-month sentence for theft was too high and should be replaced by a sentence of 12 months.

12. To that 12-month sub-total must be added the one month for going equipped. And that results in a sentence of 13 months' imprisonment for each applicant.

13. Treating the applications as the appeals themselves , we allow the appeals to reduce the overall sentence for each applicant from 19 months' imprisonment to 13 months' imprisonment.

Representation:

Mr Jeremy Cheung (instructed by Director of Legal Aid) for the applicants

Mr D.G. Saw & D. Pang (of the Attorney General's Chambers) for the prosecution