THE QUEEN v. CHOI SO MAN

CACC000448/1985

IN THE COURT OF APPEAL	1985 No. 448
	(Criminal)

BETWEEN

THE QUEEN   AND   CHOI SO-MAN

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

Date of Hearing: 24th January 1986

Date of Judgment: 24th January 1986

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JUDGMENT

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Li, V.-P.:

1. The applicant pleaded guilty to four charges of burglary and was sentenced to four years imprisonment to run concurrently. At the time when he was convicted he was under a suspended sentence for three months suspended for two years. This was activated upon his conviction. Thus the total sentence to be served by this applicant would be four years and three months.

2. The facts as agreed disclosed that between the 6th and 21st of July 1985 he burgled four sets of commercial premises in Kowloon and stole a lot of watch parts, cameras, electric wirings materials and transistors to the total value of over $98,000. There was no indication in the agreed facts as to how he was arrested. But he was arrested probably on information. He made cautioned statements admitting all these four offences. It appeared that but for his confessions the police would have some difficulty in their investigation, and would be difficult to prove the offence.

3. He had two previous convictions - one of loitering and possession of an offensive weapon in the public place on the 19th of February 1982. He was convicted of attempted burglary on the 26th of February 1985 and given a suspended sentence of three months. Before sentence the trial judge called for a probation report which indicated he was 25 years old. His parents and relatives were all in China. He came to Hong Kong in 1980 and lived with a distant uncle. He had been working in China as a farmer. In Hong Kong he worked as a messenger, a salesman and a construction and decoration worker. His last job earned him about $3,000 per month. He indicated that these crimes were committed because of financial hardship due to his parents' illness and his own greed. The report said that he did not seem to have learned a lesson. Probation supervision was not recommended.

4. Imposing the sentence of four years the judge hardly gave any reason. He said that the defendant pleaded guilty to four charges of burglary. The offences were committed on the 6th of July, 21st of July and the 23rd of July. All the premises burgled were business premises. The probation officer's report indicated that the defendant was 25. The defendant had the two previous convictions mentioned earlier. For this last offence the defendant was sentenced to three months imprisonment suspended for 2 years and fined $1,000. He said:

"In my opinion the current sentences of 4 years imprisonment were appropriate for the present offence. I activated the suspended sentence and order that it takes effect consecutively to sentences imposed by me in respect of the present offence."

5. Such reasons given appeared to us to be singularly unhelpful because we do not know, nor is it clear to us, which part of the agreed facts or which part of the probation officer's report had been taken into consideration and whether he gave any discount (though he might have) for the plea of guilty.

6. We had yesterday an application for review where the stolen property was to the value of nearly $1 million. In that case there were 8 charges of burglary and 1 attempted burglary, to which accused had pleaded not guilty. We indicated that in a case of that nature 6 years imprisonment would be appropriate.

7. In this case there were 4 offences of burglary. The property taken was about one tenth the value comparing with the other case. The applicant pleaded guilty. As far as damage was concerned practically all the property had been recovered as a result of his cooperation. In yesterday's case, most of the valuable property had not been recovered at all.

8. On the facts disclosed in the present case and the applicant's plea of guilty, we would like to make it manifestly clear that some discount should be given. For these reasons we reduce the sentence by one year. We grant leave to appeal against sentence. The application is treated as the appeal proper. We reduce the sentence of 4 years to 3 years, but we will not disturb the sentence activated so that in total the appellant would serve a total of 3 years and 3 months sentence.

(Simon F.S. Li) Vice-President

Representation:

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

Mr. I.G. Cross and Mr. C. Coghlan, Crown/respondent