HKSAR v. CHAN KWOK CHOI

CACC365/2002

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO.365 OF 2002

(ON APPEAL FROM DCCC 243 OF 2002)

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J U D G M E N T

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Hon Burrell J (giving the judgment of the Court) :

1. On 3 July 2002 the applicant was convicted after trial of an offence of burglary. He was sentenced to 3 1/2 years' imprisonment. Later the same month he applied for leave to appeal against his conviction. That application was heard and dismissed by this court in March 2003.

2. On 15 April 2003, over eight months after his trial, he applied for leave to appeal his sentence out of time. Since then the matter has been adjourned once at the applicant's request to enable him to get legal representation.

3. The facts of the offence as found by the trial judge Deputy Judge Mackintosh can be stated quite briefly. A game centre in Mongkok was forcibly broken into in the early hours of a morning in January 2002. The applicant was the person who broke in, he was alone at the time. In order to gain entry he climbed onto the roof, cut through steal sheeting and broke through a wall. In order to leave after the burglary, he used bolt cutters to cut open door locks. Needless to say, all this was done with sophisticated, professional housebreaking tools and implements which he had brought with him for the purpose. When inside the premises he broke open and damaged the gaming machines and stole gaming equipment and cash to a value of about $60,000.

4. Before sentencing the following aggravating features were noted by the learned judge :

(1) that the burglary was carefully and skilfully carried out;

(2) that it must have involved a degree of planning beforehand - such as by visiting the premises in order to work out how to gain access;

(3) that heavy equipment was required to force an entry;

(4) that arrangements had been made for a quick get-away;

(5) that the applicant had previous offences for dishonesty but not for burglary. The learned judge correctly stated that the applicant was not being sentenced on his record nor for the fact that he had denied the offence in the face of compelling evidence. He said as follows :

" You are not a man with a record for burglary but you do have a substantial record for offences of dishonesty. You are not to be sentenced on your record because you have served the time for those past crimes, but the fact that you carry on committing offences aggravates the present offence. ..."

And he later said :

" The sentence in all the circumstances must be higher than the tariff for ordinary commercial burglary. You are not entitled to any discount from the sentence. There is no mitigation whatsoever. I must make it crystal clear that you are not to be punished for pleading not guilty. That is your right to challenge the prosecution to prove their case. And neither is the position aggravated by your extensive and false allegations of improper conduct by the police. You are only to be sentenced for the crime you have committed, having regard to all its circumstances."

5. The learned judge also correctly stated that the normal sentence for burglary of a commercial premise after trial was 2 1/2 years' imprisonment. He imposed a higher sentence than normal because of the aggravating features of the offence itself to which reference has already been made.

6. Mr Zervos, SC for the respondent has referred us to a number of authorities which demonstrate that the normal starting point for commercial burglaries is indeed 2 1/2 years' imprisonment. Obviously, it can be both lower or higher depending on all the circumstances.

7. The sole issue before this court therefore is : was the learned judge entitled to impose a higher than normal sentence and if so, by how much.

8. We are satisfied that he was so entitled. The degree of planning, the equipment used, the damage caused to gain entry, the damage to the machines and the value of the property stolen, all taken together put this case into a higher category, a category described in HKSAR v. Sim Ka-wing, CACC456/2000, as "cases of professional criminals who plan their burglaries with meticulous care and steal goods and cash of considerable value". The applicant cannot complain about being labelled as a professional criminal in view of his nine previous convictions including offences for robbery, handling stolen goods, attempted theft, going equipped for theft and criminal damage.

9. The amount by which the normal sentence was increased in this case to reflect the aggravating features was one year. Whilst such an increase is towards the top end of an acceptable range, we do not consider it to be excessive in view of the number and the nature of those aggravating features.

10. By his 2nd ground of appeal, the applicant argues that his sentence should be reduced because his wife was injured in a fire at her home in Shenzhen. There is a degree of uncertainty about this fire. In a recent affirmation dated 7 January 2004 he stated the fire occurred in August 2002, that is after his trial, and that he did not learn about it until September 2002. It was still before his bail application. The affirmation in support of his bail application pending appeal makes no reference whatsoever to the fire. This is a surprising omission in the circumstances.

11. We have also received a sickness certificate from a clinic in Tai Shan City PRC which does not take the matter any further. It does not give the date of the accident. It merely states that Madam Chen Ling received second degree burns to her lower limbs and was treated at the clinic. That certificate is dated 15 December 2003.

12. We cannot now take this matter into account. A domestic accident however unfortunate, the details of which are extremely vague, occurring 1 1/2 years ago cannot provide this court with any grounds for reducing an otherwise proper and correct sentence.

13. Accordingly we find both of the main grounds of appeal to be without merit. The reason given for the application being eight months late is also devoid of merit. The applicant states that he only applied to appeal sentence out of time because his appeal against conviction was dismissed in March 2003. He says he did not apply at the proper time because he had been advised that his appeal against conviction had good prospects of success. We reject this contention. Other than stating that it is devoid of merit it is unnecessary to investigate it further because we have concluded that the appeal would have been dismissed in any event on its merits.

14. There is one final matter. The learned judge at the time of sentencing made an order forfeiting the applicant's car which was parked near the scene. That order was made pursuant to section 102 of Criminal Procedure Ordinance, Cap.221, which gives a court power of forfeiture of property in certain circumstances. The relevant provisions are :

"102. Disposal of property connected with offences

(1) Where -

.... (c) it appears to a court that any property in the possession of the court, the police or the Customs and Excise Service has been used in the commission of an offence,

then, whether or not the offence was committed or appears to have been committed in Hong Kong, a court may dispose of such property in the manner provided in this section.

(2) Of its own motion or upon application, a court may -

....(b) in respect of property to which subsection (1)(b) or (c) applies

....(ii) make an order for the forfeiture of the property"

15. However, Mr Zervos has brought to this court's attention the provisions of section 102(7) which were not drawn to the attention of the learned judge at the time of sentencing. That subsection reads :

" The power conferred on a court by subsection (2)(b)(ii) to order the forfeiture of property shall not apply in respect of immovable property or any aircraft, motor vehicle or ship."

Accordingly there was no jurisdiction to make the forfeiture order of the car and we now revoke it.

16. Save for the revocation of the forfeiture order of the car, this application is refused.