Hon Leong CJHC (giving the judgment of the Court):
由高等法院首席法官梁紹中宣讀上訴法庭判案書:

1.On 6 November 2000, the applicant for leave to appeal (i.e. the defendant) Ng Lok Wan pleaded guilty in the District Court to two counts of burglary.  The two charges alleged that the applicant intruded into a residential flat on 6th Floor, No. 9 Tse Mi Alley, Western District on 17 and 19 July 2000 respectively and committed theft therein.  On the first occasion, she stole cash in the sum of RMB 700.  On the second occasion, she stole a quantity of audio equipment, including, among others, a video-recorder, a radio, a cassette recorder, a CD player and loudspeakers.
1．上訴許可申請人（即被告人）吳諾雲於2000年11月6日在區域法院承認兩項入屋犯罪罪名。兩項控罪指申請人在2000年7月17日及19日分別侵入位於西環紫薇街9號6樓一住宅單位偷竊，第一次偷去人民幣700元，第二次偷去一批音響器材包括錄影機，收音機，錄音機，雷射碟機，喇叭等。

2.When the victim in this case returned home on 17 July 2000, he discovered that his flat had been broken into and ransacked, and that RMB 700 was missing.  When he returned home two days later, he discovered that his flat had been burgled again and that the audio equipment itemised in the second charge was missing.  He therefore made a report to the police.
2．本案事主於2000年7月17日回家時，發現家中曾被人進入搜掠，失去人民幣700元。兩日後，他回家時，又發現家中再次被人進入偷竊，失去第二項控罪所列出之音響器材，事主於是報警。

3.On the following day, the police found some of the audio equipment which was stolen from the victim at a junk store in Second Street, Western District.  The storekeeper told the police that he bought the equipment for a low price from a female.  Based on the descriptions of the female given by the storekeeper, the police located the applicant and arrested her.
3．次日，警員在西環第二街一收買店找到部份事主失去的音響器材。店主向警員透露，該等器材是一名女子以平價售賣給他的。警方根據店主對該名女子樣貌的描述，找到申請人，將申請人拘捕歸案。

4.The applicant confessed under caution that she had committed the two offences together with her boyfriend.  Her boyfriend broke into the flat to steal, and she was responsible for selling the stolen goods.  She had even taken the storekeeper of the junk store to the flat to remove the audio equipment.  The fingerprints of the applicant’s right middle finger and right ring finger matched the fingerprints lifted by the police from the flat where the offences took place.  The applicant had admitted the above facts.
4．申請人在警誡下，承認她與男朋友一同干犯兩案，由男朋友入屋偷竊，她將贓物出售。她並且帶同收買店店主入屋將該批音響器材搬走。申請人右手中指及無名指的指紋與警方在案發單位內套取之指模相符。申請人承認以上的案情。

5.The applicant was 20 years old. She had one conviction record for theft but had never been sentenced to imprisonment.  According to the assessment report of the Correctional Services Department which was obtained before sentencing, the applicant was a drug addict and therefore not suitable for training in the training centre.  At the same time, the probation officer thought that probation was not suitable for the applicant.
5．申請人20歲，有一次偷竊犯案紀錄，但從未受過監禁刑罰。根據懲教署對申請人判刑前評估報告，申請人是一名吸毒者，不適宜進入教導所接受訓練。感化官亦認為申請人不適宜接受感化。

6.In sentencing the applicant, the judge referred to the serious nature of the two offences in question and considered a custodial sentence necessary.  The judge also took the view that the terms of the two offences were to run consecutively, the reason being that although the two offences took place at the same location, they were separated by an interval of two days.  The judge adopted a starting point of 36 months in respect of the first offence and a starting point of 42 months in respect of the second offence. After giving the applicant the discount to which she was entitled on account of her plea of guilty and after considering the totality principle, the judge sentenced the applicant to 42 months’ imprisonment.
6．法官判刑時稱申請人所犯兩罪屬嚴重罪行，所以要判申請人監禁。法官又以兩案案發相距兩天，但在同一地點，認為兩案之刑期應分期執行。他以36個月監禁為第一項罪名的刑期起點，42個月監禁為第二項罪名的刑期起點，扣除申請人因認罪應獲得的減刑及調整整體刑罰後，法官判申請人監禁共42個月。

7.The applicant now seeks leave to appeal against sentence.
7．申請人現要求本庭准許她上訴減刑。

8.The ground of appeal as submitted by counsel for the applicant is essentially as follows. Both offences took place at the same location and involved the same victim.  Furthermore, only a short interval of time elapsed between the two offences.  The judge should, therefore, have treated them as one single incident and passed a concurrent sentence in respect of the two offences, and the overall sentence should at most be slightly over 3 years.  Counsel also submits that the judge should not have fixed a discrete starting point for each individual offence and then discounted each term on account of the plea of guilty; rather, he should have determined an overall sentence for all the offences covered by the two charges before giving the discount for plea.  Counsel submits that the trial judge had erred in law.  The case of Attorney General v. Lo Ching Fai [1996] 2 HKCLR 19 is cited to support the above argument.
8．申請人的代表大律師向本庭陳述的上訴理由，基本是兩項控罪涉及同一犯案地點，同一受害人，而兩案發生時間相距不遠，法官應將兩項控罪作為單一事件處理，將兩項控罪的刑期同期執行，而整體刑罰不應比稍多於三年之刑期重。大律師又指法官不應就每項控罪，先定下個別的刑期起點，然後個別扣除因認罪可獲的減刑，大律師認為法官應依據兩項罪名涉及的所有罪行，定出整體刑期後，方作出扣減。他指原審法官原則上犯錯誤。大律師引用律政司訴盧清輝（譯音）[1996] 2 HKCLR 19一案以支持以上的論據。

9.Counsel also relies on HKSAR v. Law Fat Chai（香港特別行政區訴羅發仔）Crim App 575 of 1997, the facts of which, it is submitted, were similar to those of the present case.  The defendant in that case also pleaded guilty to two counts of burglary.  On appeal, the Court of Appeal held that the overall sentence should be 2 years and 3 months.
9．大律師更引用香港特別行政區訴羅發仔 Crim App No 575 of 1997一案，指該案案情類似本案，而被告人也認罪。該案牽涉兩項入屋犯法罪。在上訴後，上訴庭認為總刑期應是兩年三個月。

10.In Lo Ching Fai, the Court of Appeal referred to Attorney General v. Lui Kam Chi [1993] 1 HKC 215 and stated that, in respect of a single offence of burglary in domestic premises, where the defendant is an adult and there are no other aggravating or mitigating factors, the usual starting point is 3 years.  If the defendant committed a series of the same offence at different times, the court can adopt a higher starting point in respect of each offence than when there is only a single offence.  It is immaterial whether the starting point is fixed on the basis of the sentences being concurrent or consecutive.  The important point is, if the sentences are to run concurrently, then the starting point should be higher than when there is only one single charge; if the sentences are to run consecutively, the term for each of the offences must be reduced as appropriate, so that the overall sentence will not become too excessive.
10．上訴法庭在盧清輝一案引用律政司訴雷錦池（譯音）[1993] 1 HKC 215一案稱，就單一項進入住宅樓宇犯罪罪名的判刑而論，如果被告人已成年，又無其他可以增加刑罰或減刑的因素，一般刑期起點為三年。如果被告人在不同時間，連串干犯一項以上的同樣罪名，法庭可以較單一項罪名的刑期長的刑期作為每項罪名之刑期起點。無論以同期執行方式或分期執行方式為依據決定刑期起點，都沒有關係。重要的是如果刑期是同期執行，起點必須較單一項罪名的刑罰為高；如果是分期執行，每項罪的刑期必須適當地調低，以免總刑期流於過重。

11.It has to be pointed out that the key issue in the present appeal against sentence is whether the overall sentence is appropriate.  If it is, then it is immaterial how the sentence is arrived at.  We are satisfied that the judge was perfectly entitled to treat the two burglary offences which took place at the same place but at different times as separate incidents.  On this basis, we see nothing improper with passing consecutive sentences.
11．本庭要指出本上訴減刑的關鍵是整體刑罰是否適當，如果是適當的話，法官如何達成所判之刑期就不大重要。本庭認為法官在本案絕對有理由將兩宗在同一地點但不同時間發 生的爆竊罪行視為不同事件，因此判處分期執行刑罰，並無不妥善之處。

12.It is apparent from the facts of the present case that, when the applicant burgled the flat on the first occasion, she realised that the flat was unattended, and the crime went off without a hitch.  She was emboldened by this experience to the extent of committing theft on an even larger scale two days later.  The applicant was plainly flouting the law and treating other’s properties as her own.  In our view, the circumstances of the second burglary were far more serious than those of the first offence.
12．從本案案情可見，申請人干犯第二項控罪是由於她在第一次入屋偷竊時，知道屋內沒有人，犯案如此得心應手而獲得鼓勵，繼而變本加厲，在兩日後進行更大規模的偷竊，可見申請人視法律為無物，對他人財物視為己有。本庭認為第二次入屋偷竊的情況比第一次嚴重得多。

13.Having regard to the facts of this case, the background of the applicant, and the fact that the applicant had hitherto not been sentenced to imprisonment, we take the view that the sentence of 3½ years upon the applicant’s plea of guilty, which means a starting point of over 5 years, is excessive.  A more appropriate overall sentence should, in our view, be 3 years, and leave to appeal is granted accordingly.  In coming to this conclusion, we have also taken into account the sentence passed in Law Fat Chai and the similarity between the facts of that case and those of the present case.  We therefore conclude that the starting point for the first offence should be 3 years, and the starting point for the second offence, which was even more serious, should be 4½ years.  As the two sentences are to run concurrently, the overall starting point should be 4½ years.  And as the applicant pleaded guilty and is therefore entitled to a one-third discount, the term should be reduced to 3 years.  We allow the applicant’s appeal, set aside the original sentence and replace it with the above sentence.
13．本庭考慮本案案情和申請人背景後，及因這次監禁是申請人首次入獄，認為申請人認罪後，法官判監三年半，即以超過五年的刑期為起點，實為過重。本庭認為本案的總刑期應為三年，因此本庭批准上訴許可，本庭達成此結論亦因羅發仔一案所判之刑期及該案之案情與本案案情相似。因此本庭認為第一項控罪之刑期起點應為三年，第二項控罪因較第一項嚴重，刑期起點應為四年半，但兩項刑期同期執行，即總刑期起點為四年半，鑑於申請人認罪扣減三分之一刑期，所以申請人的刑期應為三年。本庭批准上訴，將原判之刑期擱置而代以上述之刑期。

Ms Denise Chan, Government Counsel, for the HKSAR.
控方 : 由律政司陳鳳珊大律師代表香港特別行政區政府。

Mr Andy Hung, instructed by the Legal Aid Department, for the defendant.
辯方 : 由法律援助署委派孔慶碩大律師代表被告人。