Read the full judgment text of CACC 396/2012 on BabelCite. This Court of Appeal judgment was delivered on 27 March 2013 before Cheung CJHC and McWalters J.
Criminal law – sentencing – burglary – assault occasioning actual bodily harm – persistent offender – guilty plea – starting point – consecutive sentences – totality principle – appeal against sentence. Applicant pleaded guilty to two counts of burglary contrary to section 11(1)(b) and (4) of the Theft Ordinance (Cap 210) and one count of AOABH contrary to common law and punishable under section 39 of the Offences Against the Person Ordinance (Cap 212), committed on 15 June 2012 in an occupied flat at Shek Lei (II) Estate, Kwai Chung. Applicant had 24 prior burglary convictions and committed the offences whilst on bail for a drug offence. Whether 4-year starting points for the burglary offences were manifestly excessive – held yes, enhancement should be limited to 25% giving starting point of 3 years 9 months, reduced to 30 months after one-third guilty plea discount. Whether sentences for the two burglaries should be served wholly concurrently – held no, a consecutive period is justified to reflect additional culpability, but reduced to 4 months. Whether 18-month starting point for AOABH was manifestly excessive – held yes, appropriate starting point is 4 months, reduced to 2 months and 20 days; consecutive component reduced to 1 month. Whether final total sentence of 3 years and 2 months was manifestly excessive – held yes, total sentence substituted. Application for leave to appeal allowed; appeal treated as heard; sentence quashed and substituted. HKSAR v Chan Pui Chi [1999] 2 HKLRD 830 and HKSAR v Lam Kwai Wa HCMA 1078/2002 applied on principles of sentencing persistent offenders – enhancement to provide additional deterrence and protect the public, with no fixed percentage; 25% enhancement appropriate in this case. Final sentence: 30 months for first burglary, 30 months for second burglary, 2 months 20 days for AOABH, with 4 months and 1 month consecutive respectively to the first burglary, total 35 months' imprisonment.
Legal issues: Whether 4-year starting points for burglary offences were manifestly excessive · Whether the two burglary sentences should have been served wholly concurrently · Whether 18-month starting point for AOABH was manifestly excessive · Whether the final total sentence of 3 years and 2 months was manifestly excessive
Outcome: Application for leave to appeal allowed; appeal treated as heard; original sentence quashed and substituted sentence imposed.
Cited by 14 cases · Cites 1 case