Read the full judgment text of CAAR 000012/1995 on BabelCite. This Court of Appeal judgment was delivered on 18 January 1996 before Bokhary, Mortimer and Mayo, JJ.A..
Criminal law – sentencing – burglary of domestic premises – multiple offences – suspended sentence – review of sentence – starting point for burglary – discount for guilty plea – reduction on review – uniformity in sentencing. The respondent, a man of previous good character in his mid-twenties, pleaded guilty in the District Court to two counts of burglary of domestic premises. The two burglaries were committed in Queen's Road West in June and July 1994 respectively, each in the afternoon. On each occasion, the respondent rang the doorbell to ensure that nobody was home, then broke into the flat through a ventilation window. From the first flat he stole two cameras and cash of £25 and US$25; from the second he stole HK$1,500 in cash and a chopper. A third charge of burglary was not proceeded with after the prosecution offered no evidence. The offences were committed at a time when the respondent had lost a well-paid job with Design 2000 due to redundancy and was working as a casual cleaning labourer; he had since secured work as a showroom co-ordinator for Lamex Trading Company Limited. Deputy Judge HC Wong imposed concurrent sentences of 18 months' imprisonment on each charge, suspended for three years. The Attorney General obtained leave from the Chief Justice to apply to the Court of Appeal for review of that sentence. Held, allowing the Attorney General's application. Three years' imprisonment is the general starting point for a single offence of burglary of domestic premises committed by a first offender of full age in circumstances unattended by particular aggravation or mitigation (AG v. Lui Kam Chi [1993] 1 HKC 215). Where there is more than one offence of a similar nature committed at different times, a higher sentence than for a single offence is warranted (R v. Tong Hoi-fung [1988] 1 HKLR 610). The appropriate overall starting point for the two burglaries was 3½ years' imprisonment, whether arrived at by way of concurrent or consecutive sentences. The respondent's available mitigation consisted essentially of his guilty pleas (discount of one-third), his previous good character, and the circumstances of having lost a well-paid job through redundancy, warranting a discount in excess of one-third, so the concurrent terms should each have been two years' imprisonment. A suspended sentence for burglary of domestic premises is wrong in principle as providing insufficient protection for the public, absent exceptional circumstances pertaining to the offence or the offender. Burglary is a very serious offence; the doorbell-checking technique used by the respondent was not foolproof, and there is the further risk of someone coming home while the burglar was still in the flat. The respondent's circumstances were not exceptional, and a suspended sentence could not be justified. Where an immediate custodial sentence is imposed on review after a non-custodial sentence at trial, a reduction should be given to soften the additional impact. While the appropriate term on review was two years' imprisonment concurrent, the Court reduced each charge to 18 months' imprisonment concurrent, making the total an immediate custodial sentence of 18 months — the same term the trial judge had set, but now immediate rather than suspended.
Legal issues: Starting point for multiple offences of burglary of domestic premises · Whether a suspended sentence is appropriate for burglary of domestic premises · Reduction when immediate custodial sentence imposed on review
Outcome: Application for review of sentence allowed; suspended sentence replaced with immediate custodial sentence of 18 months' imprisonment concurrent on each charge.
Cited by 10 cases · Cites 1 case