Read the full judgment text of CACC 62/2009 on BabelCite. This Court of Appeal judgment was delivered on 14 July 2009 before Hartmann JA, McMahon J.
Criminal law – sentencing – burglary of non-domestic premises – multiple offences – totality of sentence – consecutive sentences – professional burglar – guilty plea discount – appeal against sentence. The applicant pleaded guilty in the District Court to 13 charges of burglary of non-domestic premises committed over a four-month period in 2008, obtaining $130,825 in cash plus clothing and other items, none of which was recovered. Most offences occurred at night when the premises were empty; in the first charge the applicant was seen taking $75,000 from a cash drawer and escaped. The sentencing judge adopted a starting point of 30 months per offence, reduced to 20 months for the guilty pleas, and ordered the first three sentences wholly consecutive with one year of the fourth consecutive, yielding a total of 6 years' imprisonment, reflecting a notional starting point of 9 years. On appeal, the applicant contended that the totality was manifestly excessive. The Court of Appeal reviewed authorities including Secretary for Justice v Chan Tsz Lung (CAAR 4/1998), HKSAR v Xie Guohong (CACC 384/2003), HKSAR v Lui Cho Yiu (CACC 81/2004) and HKSAR v Cheng Wai Kai (CACC 338/2007), and observed that, although there is increasing recognition of the need for deterrent sentences for professional or serial burglars and that aggravating factors such as careful planning, use of accomplices, substantial targets, professional status, prior convictions, multiple offences and substantial damage to premises can justify a notional starting point above 5 years, the appropriate starting point must reflect the particular circumstances. Held, the notional starting point of 9 years was manifestly excessive in circumstances where, although 13 offences were committed, the losses were not of the magnitude in Xie Guohong (about $470,000), there was no significant damage to premises as in Cheng Wai Kai, and the applicant acted without accomplices, even allowing for his status as a professional and the very high number of offences. A more appropriate notional starting point was 6 years, yielding a totality of 4 years after the guilty plea discount. Appeal allowed; individual sentences not disturbed, but the 1st charged offence ordered to be served wholly consecutively and 8 months of the 3rd charged offence to be served consecutively to all other sentences, giving a total of 4 years' imprisonment.
Legal issues: Whether totality of 6 years' imprisonment for 13 burglaries of non-domestic premises was manifestly excessive
Outcome: Appeal allowed; total sentence reduced from 6 years' imprisonment to 4 years' imprisonment.
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