R v. Chan Chun Fai

CACC000087/1997

No.87 of 1997

(Criminal)

IN THE COURT OF APPEAL

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Coram: Hon Power, Ag. CJ, Mayo, J.A. & Gall, J. in Court

Date of hearing: 26 June 1997

Date of judgment: 26 June 1997

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J U D G M E N T

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Gall, J. : (Delivering the judgment of the Court)

1. The Applicant was convicted by H.H. Judge Hawkes on 13^th January 1997 in the District Court on his own plea of one charge of burglary and was sentenced on 27^th January 1997 to a term of 2 years imprisonment.

2. The facts to which the Applicant entered his plea were that on 17^th November 1996, together with another man, he attempted to open the door to premises in Wan Tsui Estate by pulling back the door bolt with a piece of wire inserted through the letter box slot in the door. A witness in the premises opened the door and seized the Applicant. The police were called.

3. The Applicant is 18 years of age and has, prior to this offence, four previous convictions including one for burglary and one for attempted burglary. The judge obtained a background report, a Training Centre report and a Drug Addiction Treatment Centre report. The background report was generally unsatisfactory and the Training Centre report did not recommend Training Centre due to the addiction in the Applicant to drugs. The Drug Addiction Treatment Centre report did find him suitable for Drug Addiction Treatment Centre where he was at the time serving a sentence.

4. The Applicant appeals his sentence firstly on the ground that the background report was much the same as that compiled by the Probationary Service in respect of an offence for which he was convicted in 1992, and that he had been told on this occasion by his family that the Probation Officer did not make detailed enquiries of them.

5. The matters of which he complains to us as being omitted from the report relate to the disservice that he has done to his family, the cost to them of offences which he has committed and of his representation in Court in respect of them and their support of him through these difficulties. The support from his parents is referred to generally in the report and the other matters were not such as would have assisted him in this case.

6. The second ground of appeal is generally that at the time of the offence, he did not obtain any benefit, that no-one was injured and that he was co-operative with the police. All these matters are adequately reflected in the substantial discount given to the Applicant upon his plea. The trial judge did not consider Drug Addiction Treatment Centre, in all the circumstances of the Applicant, to be an appropriate sentence. With this we agree. Nothing has been placed before us to warrant a reduction in the sentence passed by the judge and this application for leave to appeal is dismissed.

Representation:

Mr I.G.Cross, Q.C., D.D.P.P. and Mr Isaac Tam, C.C., for Respondent

Applicant in person