HKSAR v. NG LOK WAN

[English Translation]
CACC 483/2000

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL JURISDICTION

APPLICATION FOR LEAVE TO APPEAL AGAINST SENTENCE

CRIMINAL APPEAL NO. 483 OF 2000

(ON APPEAL FROM DCCC NO. 884 OF 2000)

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JUDGMENT

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Hon Leong CJHC (giving the judgment of the Court):

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 6^th Floor, No. 9 Tse Mi Alley, Western District on 17and 19July 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.

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.

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.

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.

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.

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.

7. The applicantnow seeks leave to appeal against sentence.

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.

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.

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.

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.

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.

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.