HKSAR v. Fu Lap Man, Wandy

CACC000733/1997

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

1997, No.733
(Criminal)

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Coram: Hon. Power, V.-P., Mayo and Stuart-Moore, JJ.A.

Date of Hearing: 24 March 1998

Date of Judgment: 24 March 1998

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J U D G M E N T

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Power, V.-P. (giving the judgment of the Court):

1. This applicant faced two charges of burglary. After evidence was given by the victims, he pleaded guilty to theft and was sentenced by Judge Davies to imprisonment for two years on the first charge and one year consecutive on the second charge. He now seeks leave to appeal against those sentences.

2. The first charge, unamended, read that he, on 27th May 1997, at Tsuen Wan, New Territories, having entered as a trespasser at the rooftop No.5 Sham Tseng Village, stole, and there are there set out a whole range of domestic appliances, foodstuffs and furniture. The second charge was similarly phrased but it referred to the rooftop of No.6 in the same village and it detailed that five sweaters and two umbrellas were stolen.

3. The applicant has a bad record going back to 1983 involving offences of burglary, theft and handling stolen goods.

4. The trial judge, when sentencing, said:

"If the defendant had been convicted after trial of the original offences of domestic burglary, the guideline sentence would be 3 1/2 years' imprisonment in respect of each offence. Viewing the facts, however, in the light of the pleas to theft, I believe that a starting point of only 2 1/2 years is warranted."

5. He then set out the applicant's previous convictions. He pointed out that the applicant had not pleaded guilty at the earliest time, which was quite correct, and that he was only, because of this, prepared to give a discount of 20%. He finally said:

"For each offence the proper sentence is one of 2 years' imprisonment which would make a total of 4 years' imprisonment. I consider this term too long and, by application of the totality principle of sentencing, I impose a term of 2 years in respect of charge 1, and 1 year in respect of charge 2, the sentences to be served consecutively .........."

6. Mr. Ross, who appears for the applicant today, has suggested that the starting point of 31/2 years was too high even for burglary charges which, of course, the applicant did not, at the end of the day, admit. He submits that the sentence for burglary should not have played any part in the assessment of sentence on the theft charges. He submits also that the consecutive sentences were not appropriate given that this was one course of criminal conduct.

7. We are satisfied that considerable merit in Mr. Ross' arguments. This was a dishonest spree in which the applicant went from his own rooftop, which was apparently only a short distance away, to the rooftop of the neighbours and stole goods stored thereon. The offences were inexcusable but we are satisfied that the sentences overall was excessive. We consider that the best way of dealing with the matter is to order that the sentences be concurrent. This produces an overall sentence of two years.

8. The application is allowed. The hearing of the application is treated as the hearing of the appeal and the sentences are varied accordingly.

Representation:

Mr. B.M. Ryan (D.P.P.) for the Respondent.

Mr. Philip Ross assigned by D.L.A. for the Applicant.