ATTORNEY GENERAL v. CHEUNG YUI-MAN

CAAR000016/1985

IN THE COURT OF APPEAL

1985 No. 16

Application for Review

BETWEEN

ATTORNEY GENERAL

AND

CHEUNG YUI-MAN

Coram: Hon. Li, V.-P., Yang, J.A. & Power, J.

Date of Hearing: 24th January 1986

Date of Judgment: 24th January 1986

___________

JUDGMENT

___________

Li, V.-P.:

1. This is an application by the Attorney for review of sentences pursuant to leave granted by the Acting Chief Justice.

2. The respondent was convicted of 8 charges of burglary and 1 charge of attempted burglary. The learned trial judge imposed concurrentsentences of 3 years imprisonment in respect of each of the charges. The application alleged that such sentences were manifestlyinadequate and wrong in principle.

3. The respondent committed between the 30th of August 1984 and the 21st of March 1985, either by himself, or, on occasions in the companyof his co-accused CHEN Fei-hung. In the process he broke into 6 shops to commit the 8 burglaries in various places from SalisburyRoad to Shatin. He stole valuable properties include clothes, cameras, radios and jewellery to the total value of over $977,000.A large quantity of them were recovered, but the total value of the non-recovered property, mainly jewelleries and gold ornaments,were never recovered.

4. The last of these offences was committed on the 24th of March. He was then with the co-accused. In the process the alarm of the LaneCrawford Company was activated. The co-accused was arrested after a chase. He was arrested later in his own home where some propertieswere recovered. All these recovered properties were identified by members of the staff of the shops from which he stole.

5. In her reasons for sentence the trial judge mentioned that some of the property were recovered. She gave a brief description of theantecedents of the respondent and mentioned that the only mitigating circumstances stressed by the defence counsel was the full andfrank confession to the police.

6. The judge went on to say that the series of burglaries happened over a period of 8 months. She said:

“The range of sentence for burglary was quite wide, even taking into account of different individual circumstances of defendants.On the whole it appears that for multiple burglaries the sentences generally ranged from 2 to 5 years.”

She considered in those circumstances 3 years imprisonment for these burglaries was the proper sentence.

7. Learned counsel for the Crown contended that there was no justification in saying that the normal sentence for burglaries rangedbetween only 2 to 5 years. A number of cases were cited before us. Most of them were minor burglaries. In the case of The Queen v. Fu Kwok Leung(1) the applicant who appealed against sentence was convicted of only l count of burglary, and he was sentenced to 3 1/2 years imprisonment.Nothing was stolen in that case. His sentence was reduced by the Court of Appeal to one of 2½ years imprisonment.

8. In Ho Chi Keung v. The Oueen (2) the applicant pleaded guilty to 8 charges of burglary and was sentenced to 4 3/4 years . These were described as petty burglariesand the value of the property stolen was much lower than the property stolen here. He was sentenced to 4 1/2 years despite his pleaof guilty. The sentence was reduced to 3½ years by this Court.

9. In the case of Chan Wing Kwan (3) the applicant was convicted of 1 count of burglary where property worth approximately $1 million was stolen. He pleaded not guiltyand he was sentenced to 4 1/2 years. He did not apply for leave to appeal against sentence. However, his co-accused who was convictedof handling was sentenced also to 4 1/2 years imprisonment. Giving judgment of the court the learned Chief Justice said:

“An examination of a number of other cases of handling of stolen goods shows that the normal bracket of sentences runs between 2 and4 years. Similarly, other decisions suggest that the handler of stolen goods can normally expect a lesser sentence than those whoare convicted of the substantive offence of burglary of the goods which were subsequently handled.”

For this reason the Court reduced her sentence of 4 1/2 years to 2 years.

10. Judging from the scale as indicated by the learned Chief Justice, it appears.that the burglar expect a much higher sentence thanthe handler. In the case of Chan Wing Kwan (3) the property stolen was of approximately the same total value as in the present case. Even assuming that the trial judge was correctin saying that the normal sentences range between 2 to 5 years, in our view each burglary would merit a sentence of 4 years. Thomason Sentencing states that:

“The effect of the totality principle is to require a sentencer who has passed a series of sentences, each properly calculated inrelation to the offence for which it is imposed and each properly made consecutive in accordance with the principles governing consecutivesentences, to review the aggregate sentence and consider whether the aggregate is ‘just and appropriate’.”

“The effect of the totality principle is to require a sentencer who has passed a series of sentences, each properly calculated inrelation to theoffence for which it is imposed and each properly made consecutive in accordance with the principles governing consecutivesentences, to review the aggregate sentence and consider whether the aggregate is ‘just and appropriate’.”

11. Applying this principle it would appear that if we were to award consecutive sentences of 3 years in respect of each offence theaggregate would be 24 years. In our judgment, even though this were the worst type of burglary, a sentence of 5 years would not bemanifestly excessive. Applying the principle suggested by Thomas we assess the sentences on the totality basis.

12. Learned counsel for the respondent cited The Queen v. Ko Chi Yau(4). In that case, the applicant had been convicted by two trials of similar offences of burglary. He was convicted of 3 burglaries betweenthe period of 21st June 1982 to 16th March 1983 and the value of the property stolen came to about $58,000. He was sentenced to 31/2 years imprisonment. Prior to that he had been sentenced for similar offences of 3 1/2 years plus 18 months for handling. Thelearned trial judge in that case gave, him a consecutive sentence making it 7 years imprisonment in all. One of his grounds in supportof his application for leave to appeal against sentence was that these sentences should be concurrent. We felt that there was somejustification in ordering a concurrent sentence in the sense that had the other charges been heard by the same judge at the sametime, the judge would not have sentenced him to more than 5 years imprisonment. In the event we ordered that the sentence of 18 monthsto be concurrent with the sentences he was awarded and substituted a sentence of 4 years.

13. Applying the same principle to the present case, we feel that having regard to the breaking in, albeit to non-domestic premises,the lack of full mitigating circumstances, a sentence of 6 years would be appropriate. The fact that the applicant made a frank confessionshould be treated as a weighty mitigating factor. He pleaded not guilty to all the offences By his false accusations he completelynegated his previous confessions. He had previous convictions. There were no other mitigating circumstances. Applying the principleof totality in sentences a concurrent sentence in respect of each count of the burglary would be appropriate. However, as far asthe attempted burglary charge is concerned, we do not feel that we should interfere with the sentence of 3 years. In the event, weallow the application for review. The sentneces are reviewed. We order that for each offence the respondent has to serve 5 yearsimprisonment to run concurrently. This is to take into consideration that this is an application for review of sentence and that1 year discount is given to the 6 years imprisonment.

(Simon F.S. Li)
Vice-President

(1) Crim. App. No. 246 of 1984

(2) Crim. App. No. 783 of 1977

(3) Crim. App. No. 121 of 1985

(4) Crim. App. No. 640 of 1983

Representation:

Mr. I.G. Cross & Mr. Coghlan for applicant

Mr. Patrick Chan (D.L.A.) for respondent