The Queen v. Luk Wai Kit

IN THE COURT OF APPEAL

1992, No.99
(Criminal)

BETWEEN

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Coram: Silke, V.-P., Macdougall, J.A. & Jones, J.

Date of Hearing: 26^th February 1993

Date of Judgment: 26^th February 1993

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JUDGMENT

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Headnote: Sentences for burglary of domestic premises: multiplicity of offences: R. v. Chan Wing Ching CA100/91 (unreported) followed.

Silke, V.-P.:

1. This is the judgment of the Court.

2. The applicant, Luk Wai Kit, appeared for trial before His Honour Judge Whaley and pleaded guilty to seven charges of burglary and one charge of theft. He was sentenced to a period of 4 years imprisonment on each of the offences which sentences were to run concurrently, giving a totality of 4 years.

3. It is clear that the trial judge, in imposing the sentences he did, was employing the totality principle.

4. The applicant now seeks leave to appeal, with the advantage of submissions from Mr. Macrae, against those sentences.

5. The offences took place within a comparatively short period of time between 3^rd May and 25^th June 1991. Six of the premises burgled were domestic; one was a primary school. The last offence, that is the 9^th Charge of theft, related to a Dupont lighter found in his possession at the time of his arrest. All the burglaries took place in day time and it would appear that all premises were unoccupied. The first count in the charge sheet related to the burglary of 25^th June 1991. The facts were that, while walking in the street on that day with another person who has since died, the applicant was arrested. He was found in possession of the property taken in the course of that offence.

6. When he was brought back to the police station he was co-operative with the police. He admitted his participation in the burglary of the 25^th June and also confessed to the other offences with which he was charged. As the trial judge put it at the time of imposing sentence, if the applicant had not admitted the offences, other than that on the 1^st Charge, “it might never have been discovered that these offences had been committed by him.”

7. On 3^rd December 1990 the applicant had been convicted of simple possession of dangerous drugs and had received a 9 months prison sentence suspended for two years. The sentences imposed in this case were directed to run consecutively to that. In other words, it was activated. The trial judge was perfectly entitled so to do and no exception is taken to the course he followed.

8. The sole ground of appeal argued by Mr. Macrae is that the overall starting point of the trial judge, 6 years imprisonment, was too high and that that resulted in the ultimate sentence of 4 years being manifestly excessive.

9. He has referred us to a number of unreported decisions of this court starting with R. v. Ho Chi Keung, Criminal Appeal No. 783 of 1977 which has a number of features similar to the circumstances here and in which the burglar, who had pleaded guilty to eight charges of burglary and asked for four similar charges to be taken into consideration, was described as “not so much a social danger as a social nuisance”. Certainly, the applicant here can be described as, at least, a social nuisance.

10. All these offences took place in the Un Chau Estate and in a majority of cases entry to the premises was obtained through ventilators. However the property taken here were quite substantial, in comparison with that in Ho Chi Keung. We do not have a full valuation of the property recovered on the first charge but an approximate valuation overall of the property taken could come to $80,000 to $90,000.

11. In Ho Chi Keung sentences of 4½ years imprisonment were reduced on appeal to 3½ years imprisonment.

12. That case was referred to in R. v. Mui Chuen, Criminal Appeal No. 562 of 1986 in which it was suggested that Ho Chi Keung had laid down “guidelines” which the court there thought to be of some help. In Mui Chuen there were 11 charges, the first eight being burglaries and theft and a final one of going equipped for stealing. It was noted that Ho Chi Keung had been decided 10 years prior to Mui Chuen. Sentences were reduced.

13. We were also referred to R. v. Tam Cheuk Keung, Criminal Appeal No. 181 of 1989 (unreported) where this court, in respect of a sentence after trial of 4 years imprisonment for three burglaries, said that it could not conclude, despite persuasion, also by Mr. Macrae, that four years overall was inappropriate.

14. The most recent case of which we are aware, and we drew this to the attention of counsel in the course of the hearing, is R. v. Chan Wing Ching, Criminal Appeal No. 100 of 1991 (unreported). There, the applicant faced three charges of burglary. He appealed against a total sentence of 4 years imprisonment. In considering the arguments advanced the court made reference to R. v. Chan Yui Man, Criminal Appeal No. 36 of 1998 (unreported) in which it was stated that the court thought that three years to be about the proper starting point saying this of Chan Yui Man:

“That clearly sets out the starting point for burglary and we endorse that figure as the proper starting point for a first offender of full age.”

15. Certainly, pleas of guilty have to be taken into account. Here the trial judge did so and also the admission by the applicant at the first available opportunity of the other offences, other, that is, than the first charge. Because of that he gave a discount to 4 years imprisonment from his starting point of 6 years. He was aware that the accepted starting point for an offence of burglary of domestic premises after trial was 3 years imprisonment though he made no reference to cases.

16. We have considered the submissions made to us by Mr. Macrae, in particular the “social nuisance” as opposed to being a “social danger” aspect, but, notwithstanding that, in our judgment this sentence overall was by no means manifestly excessive. It is not one with which we would interfere. The application is therefore refused.

Andrew Macrae, Esq. (D.L.A) for the Applicant.

Stephen Wong, Esq. for the Crown/Respondent.