Case Detail

CACC000572A/1998

CACC 572/98

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 572 OF 1998

(ON APPEAL FROM DCCC 670 OF 1998)

BETWEEN
	HKSAR	Respondent

	AND

	CHOW Chu-tak	Applicant

-------------------

Coram: Hon Stuart-Moore, V-P, Wong, JA & Findlay, J in Court

Date of Hearing: 19 August 1999

Date of Judgment: 19 August 1999

----------------------

J U D G M E N T

----------------------

Wong, J.A. (giving the judgment of the Court) :

1. On 3 November 1998, the applicant was convicted after trial before Her Honour Judge Poon in the District Court of one charge of burglary. He was sentenced to 2 1/2 years' imprisonment. He now seeks leave to appeal against the sentence out of time.

2. The prosecution case is this. PW1 who worked in a company called GFI Company Limited, situated at Room 604, Block A, New Mandarin Plaza, No.14, Science Museum Road, Kowloon. On the day in question, that is 24 March 1998, he went to work at about 8:30 a.m. Before he started work, he placed his bag which contained, among other things, his mobile phone underneath his desk. He went out for lunch at about 1:00 p.m., leaving his bag with the mobile phone in the office. He returned after lunch at about 2:00 p.m. and found his mobile phone missing.

3. At about 1:45 p.m. on the same day, two police officers, whilst on patrol on the 12th floor of a building nearby, saw the applicant and another man walk hurriedly to the rear staircase from the corridor. They stopped and searched them. A mobile phone was found on the applicant who claimed that it had been given to him by a friend for him to sell it in China. The police was able to trace the true owner of the mobile phone from the memory function. The mobile phone was later shown to PW1 who identified it to be his.

4. The applicant applied to this Court for leave to appeal against conviction which was heard and dismissed on 19 May 1999 but he did not seek leave to appeal against his sentence on that occasion. In a written statement dated 25 May 1999, the applicant stated :

" I, CHOW Chu-tak No.39619, further appeal against sentence. Last time, I applied for appeal and the conviction was upheld. In addition to that, I am not familiar with the law. I find a sentence of two and a half years too heavy. After consideration once again, I decided to appeal against sentence. I apologize for the late appeal due to the twists and turns. Thank you."

5. Before us to-day, he pleaded for leniency. He told us that his wife was suffering from head illness and is receiving medical treatment. The wife is in Court to plead for leniency on his behalf and produces some medical chits and a medical certificate in her name. A letter written by the two daughters is read out to us, again pleading for the Court to show mercy.

6. The applicant says that he is the sole breadwinner of the family, and now that he is in prison, the family suffers financial difficulties, and he is in dire circumstances. He expresses remorse for what he had done. He asks the Court to allow his appeal so that he can be released early to look after his family which consists of an aged mother, his wife and two young daughters. We have considered the various documents which are placed before us. We have also considered the family circumstances of the applicant and we would like to say that we are not unsympathetic. But that alone is not sufficient for us to interfere with what is a proper sentence.

7. The applicant also brings to our attention a recent case in the District Court. In that case, Lui Bing Ching pleaded guilty to 14 charges of burglary of computer equipments to the value of more than $1 million. Here, the value of the mobile phone which the applicant had stolen was, according to the evidence, about $2,000. As against that, it has to be said that Lui Bing Ching pleaded guilty to all the charges before the Court, and was therefore entitled to a substantial discount. If he had not pleaded guilty and was found guilty after trial, he would certainly be given a sentence in the region of 4 1/2 years. But here, the applicant pleaded not guilty and was convicted after trial before the judge. The judge, very properly, did not consider that he was entitled to any discount.

8. The question that we have to decide is whether the starting point of 2 1/2 years adopted by the judge is correct in this case. The judge in passing sentence also found that there were no mitigating factors to justify the imposition of a lighter sentence, either by way of discount or by way of reduction.

9. Mr Sean, who appears for the Government of the Hong Kong Special Administrative Region, had been most helpful to refer us to a line of previous decisions of this Court in his skeleton submission. These cases deal with the starting point for burglaries committed in non-domestic premises. In the case of R. v. Fu Kwok Leung Crim. App. No.246 of 1985 (unreported) which concerns a burglary in non-domestic premises where nothing was stolen. The defendant there was convicted after trial. McMullin, V-P considered that the proper sentence should be one of 2 1/2 years.

10. Another case to which Mr Sean refers in his skeleton submission is R. v. Tang Ping Crim. App. No.93 of 1988 (unreported) where this Court held that the starting point for one count of simple burglary in commercial premises should be 2 1/2 years. In that case, the burglary was committed at night in commercial premises which was not occupied at the time. The defendant was alone and unarmed. The money involved was less than $1,000. In delivering the judgment of the Court, Penlington, JA said at page 4 :

"Here we feel that the District Judge was not correct in taking a starting point of 4 years and it should have been considerably less than that. For one offence of simple burglary of this sort a sentence of 2 1/2 years would have been appropriate and with the other two offences which were taken into consideration that should have been increased to 3 years. There should be from that a reduction of 9 months, taking into account the plea of guilty, albeit in the face of strong evidence, and the applicant's family circumstances. This then gives a sentence of 2 years and 3 months."

11. The applicant pleaded not guilty and was convicted after trial. A sentence of 2 1/2 years imprisonment is, in our view, entirely warranted.

12. In all the circumstances, we are satisfied that the sentence is neither manifestly excessive nor wrong in principle. The application for leave to appeal against sentence out of time is accordingly refused.

(M Stuart-Moore)	(Michael Wong)	(James K Findlay)
Vice-President	Justice of Appeal	Judge of the Court of First Instance

Representation:

Mr Eddie Sean, S.A.D.P.P.(Ag.), for DPP/HKSAR

Applicant in person

CACC000572/1998

CACC 572/1998

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 572 OF 1998

(ON APPEAL FROM DCCC 670/1998)

BETWEEN
	HKSAR	Respondent

	AND

	CHOW CHU TAK	Applicant

-----------------------

Coram: Hon. Mayo, Leong and Stuart-Moore, JJ.A. in Court

Date of hearing: 19 May 1999

Date of delivery of judgment: 19 May 1999

----------------------

J U D G M E N T

----------------------

Mayo J.A. (giving the judgment of the Court):

1. The applicant was convicted after a trial in the District Court before H.H. Judge Poon of burglary. He now seeks leave to appeal against his conviction.

2. The scope of this application comes within a very narrow compass. Particulars of the charge the applicant had to face read:

"CHOW Chu-tak, on or about the 24th day of March, 1998 at Tsimshatsui, Kowloon, in Hong Kong, having entered as a trespasser a part of a building known as GFI Company Limited, Room 604, Block A, New Mandarin Plaza, No. 14, Science Museum Road, stole therein one mobile phone."

3. The prosecution case is briefly summarised on the first and second pages of the Judge's Reasons for Verdict:

"The prosecution called five witnesses. PW1, LEUNG Chi-yuen, the owner of the mobile phone, worked in GFI Company Limited situated at the address stated in the particulars of the charge. On the day in question he went to work at 8.30 am and before he started work, he placed his bag containing his mobile phone underneath his desk. He went out for lunch leaving the bag with the mobile phone at about 1 pm and returned to his office about 2 pm.
PW2, IP Mei-yung was employed by Bluebox International Company Limited situated at Room 1203 East Ocean Commercial Building at about just two to three minutes walk from the address of the GFI Company Limited. At about 1.30 pm on that day, she saw the defendant and another male at her office looking for PW3, CHEUNG Yuk-yung. As PW3 was out for lunch she kept company with the defendant and the other male until PW3's return.

When PW3 returned shortly thereafter, he invited both males to go inside the conference room for the purpose of discussing business. During the discussion the defendant had gone out for about two to three minutes on the pretext of having to smoke. When the defendant later returned to the conference room, the two males left after the defendant told PW3 that they had to leave for fear that his car parked downstairs would be booked.
PW4 (PC 46963) and PW5 (PC 42250) were on high-rise patrol in East Ocean Commercial Centre at 1.40 pm, when they saw the defendant and the other male coming out from the 12th floor corridor and enter the rear staircase. When they tried to stop the two males, the two males paid no heed and hurried down to the 11th floor, where they were eventually stopped and questioned separately.
PW4 found the mobile phone (Exhibit P1) belonging to PW1 stuck inside the defendant's trousers at his back in the area of his waist during a search. There were also some foreign currencies (Exhibit P2) found. When questioned, the defendant said that he was given the mobile phone that morning by a friend called Ah Hung shortly after 10 am in a billiard hall. When he was arrested and cautioned, he said that the phone was given to him by his friend to take to China to sell. Later on that day PW4 also recorded another record of interview (Exhibits P4 and P4A) from the defendant."

4. There is effectively one Perfected Ground of Appeal:

"1. The learned Judge erred in finding that the prosecution has proved that the Applicant had entered Room 604, Block A, New Mandarin Plaza, 14 Science Museum Road as a trespasser and stole the mobile phone therein as charged [p5A-D]. Such a finding was wrong in that: -

(a) The learned Judged, when in setting out the prosecution case, incorrectly stated that PW1, Leung Chi-yuen, the owner of the mobile phone worked in GFI Company Limited situated at the address stated in the particulars of the charge [p1 L-N] when in fact PW1 did not give evidence as to the address which he was at on 24th March 1998 when his mobile phone was stolen [p13 I-M]; and
(b) there were no other evidence to show that PW1 was at Room 604, Block A, New Mandarin Plaza, 14 Science Museum Road, the address particularized in the charge on the day when his mobile phone was stolen."

5. It is perfectly clear from the transcript of PW1's evidence that GFI Company Limited did operate at the address given in the charge. At p.16 of the appeal bundle there is reference to the company being situated at "this address". Quite clearly the address in question is the address of the company particularized in the charge.

6. Mr. Saw, S.C. has helpfully pointed out that the particulars of the address contained in the charge were surplusage as they did not constitute a material averment. This is an even more compelling reason why this application should be dismissed. There is no merit whatever in this ground and the application is dismissed.

(Simon Mayo)	(Arthur Leong)	(M. Stuart-Moore)
Justice of Appeal	Justice of Appeal	Justice of Appeal

Representation:

Mr. D.G. Saw, S.C., S.A.D.P.P. and Mr. Winston Chan, G.C. (D.P.P.) for Respondent

Ms. Monica Chow assigned by D.L.A. for Applicant

HKSAR v. CHOW CHU TAK

Related cases with same parties

Files (2)