Kwok Sun Chuen v. R.

CACC000130/1993

1993, No.130
(Criminal)

IN THE COURT OF APPEAL

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Coram: Hon Macdougall, V.P., Mortimer J.A. and Bewley J.

Date of hearing: 19 August 1993

Date of judgment: 19 August 1993

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J U D G M E N T

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Bewley J. :

1. This is the judgment of the court.

2. On 2nd March 1993 the applicant pleaded guilty before Deputy Judge Yam to five counts of burglary. He was sentenced to 2 1/2 years imprisonment on each count. The sentences on the first three counts were ordered to run concurrently. Those on the other two counts were ordered to run concurrently with each other but consecutively to the other sentences.

3. At 8:56 pm on 20th April 1992 police attached to the Emergency Unit Kowloon West attended the premises of Polygram Records Company Limited, Room 807, Sun Plaza, 28 Canton Road, Tsimshatsui in answer to a burglar alarm. On arrival the police found that the main door had been prised open and the burglar alarm de-activated. As they entered the premises the applicant suddenly ran out. He was pursued by police and, after a short struggle, was subdued and arrested.

4. The applicant was found to be carrying a small black torch and a screwdriver in his jacket pocket. In his hip pocket the police found HK$1,680 in cash and 11 lai-see packets each containing HK$10. He was wearing black gloves.

5. After being cautioned the applicant led the police back to the premises of Polygram Records. He explained that he used the screwdriver to prise open both the main door and a desk drawer in the office. The screwdriver was also used to disable the burglar alarm. He admitted stealing the cash and the lai-see packets from a desk drawer.

6. The police later search the applicant's home at Room 923, Block 2, Lam Tin Estate, Kwun Tong, and seized a black notebook containing what appeared to be details of other burglaries. In a number of cautioned statements later taken by the police the applicant admitted having committed four other burglaries. The total cash stolen in the five burglaries was HK$23,614

7. The applicant is 33 years of age and he has one previous conviction in 1986, when he was sentenced to a total of 2 1/2 years imprisonment on one court of aggravated burglary and five counts of burglary. Since his release he has earned a precarious living as a gravestone and coffin salesman.

8. In sentencing the applicant, the judge said :

"The usual tariff for burglary is two to four years' imprisonment. I think in this case I would take three years as a starting point for one count of burglary. All five counts together, according to the totality principle, in my view, should attract a sentence of six years. In the light of your guilty plea. I will reduce the sentence of six years to five years.

9. In the court below counsel pointed out that in R. v. Tang Ping. HKLR [1988] it was held that the starting point for one count of simple burglary in commercial premises should be 2 1/2 years. This has been confirmed in R. v. Wong Man Crim. App. No.372 of 1992 and Attorney General v. Lui Kam Chi A.R. No.1 of 1993. In Wong Man the applicant pleaded guilty to two counts of burglary in shops, in which $100,000 in cash and valuable property were stolen. He was sentenced to consecutive terms of two years' imprisonment. Refusing the application, Macdougall J.A., (as he then was) giving the judgment of the court, said at p.4:

"These were not run of the mill impulse burglaries but were carefully planned and executed offences with a level of skill above that normally employed by the average burglar. The discovery at the applicant's home of the implements of burglary to which we have referred, serves only to reinforce the conclusion that these burglaries were not mere random opportunistic crimes. The offences were quite separate and justified consecutive sentences. Although the sentences were on the high side, they fell within the permissible range for burglaries of commercial premises. We do not consider that the judge was in error."

10. In the present case a total of HK$23,614 was stolen but there were five separate burglaries. Although the applicant's operation was not on the same scale as that of Wong Man, it fell within the category of burglaries cited in that case. In the opinion of the majority of this court a total of five years for these offences is excessive and the proper sentence should be one of four years' imprisonment.

11. The application is granted. We treat the application as the appeal and allow the appeal. Each sentence is reduced by six months to produce an overall sentence of four years' imprisonment.

Representation:

Mr I.G. Cross, Q.C., and Miss Mary Wu, C.C., for Crown

Mr A.M. Delaney, inst'd by John M Pickavant & Co., for Applicant