HKSAR v. AMJED ALI

CACC 122/2017
[2018] HKCA 89

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 122 OF 2017

(ON APPEAL FROM DCCC NO. 1176 OF 2016)

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REASONS FOR JUDGMENT

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1.  The applicant, who appeared in person, sought leave to appeal against the total sentence of 52 months’ imprisonment imposed on him by District Court Judge Casewell on 11 April 2017 following his conviction on his pleas of guilty to 13 charges of burglary and one charge of attempted burglary (Charge 5). It was averred that the burglaries the subject of Charges 1, 3 and 4 were contrary to section 11(1)(a) and (4) of the Theft Ordinance, Cap. 210 and the burglaries the subject of Charges 2, 6 to 14 were contrary to section 11(1)(b) and (4) of the Ordinance. It was averred that the attempted burglary, Charge 5, was contrary to section 11(1)(a) and (4) of the Ordinance and section 159G of the Crimes Ordinance, Cap. 200. At the hearing, I refused the application and said that I would give my reasons for judgment in due course. That, I do now.

2.  The applicant, a Hong Kong identity card holder, was jointly charged with the 3^rd defendant on Charge 8 and jointly charged with the 2^nd defendant on Charge 14. 

The facts

3.  The burglaries and attempted burglary occurred between 1 February and 29 September 2016 and involved breaking into residential premises at a time when they were vacant. Some of the premises had been vacant for some years, whereas others had been vacant only for several days as their occupants were travelling.  Some of the premises had been used by their respective owners merely to store property.  

4.  Entry to the premises was forced and evidenced by the different premises being found with the front door and/or metal gate prised ajar or broken windows.  In most of the burglaries there were signs of ransacking of the premises.  Items of property was stolen from 10 of the premises to a total value of $448, 850.

5.  The applicant was arrested by police officers as he emerged from the premises the subject of Charge 14 in the early hours of the morning on 29 September 2016.  A neighbour had observed him prising open the front door of the premises and had called the police.  The applicant was found in possession of a stamp album stolen from the premises.  The applicant’s fingerprints were found in nine of the premises that had been burgled and the applicant led the police to four other premises which he admitted having burgled.

Reasons for sentence

6.  In his reasons for sentence the judge noted that the applicant was a Hong Kong resident aged 32 years, married with a child.  Further, he noted that the applicant had three previous convictions for burglary, the most recent of which was in 2013 when he had been sentenced to a total of 35 months’ imprisonment for two burglaries.

7.  Having noted that the starting point for sentence of domestic premises was 3 years’ imprisonment the judge went on to state:[1]

“ …there is a proposition of sentencing that where there are observably vacated premises with no or little loss of property involved, sentences for their burglary may reflect that fact by the adoption of a lower starting point for sentencing. And it said it is irrelevant whether the premises are domestic or commercial.

That would appear to apply to the premises in the 14th charge.  It would appear also that all the premises in all 14 burglaries are observably vacant because that would appear to be the reason why the 1st defendant targeted them.  But it cannot be said for most of them there is no or little loss of property.”

8.  Having noted that all the premises the subject of the 14 charges were vacant residential premises, the judge said that he declined to give any discount of sentence to the applicant because he was “a persistent burglar” and “it was his modus operandi” to burgle such premises.  On the other hand, the judge said that the applicant’s previous convictions for burglary was “an aggravating factor in respect of each of the burglaries that he has committed.”  In sentencing the applicant, the judge reflected that factor of aggravation by increasing the different starting points that he stipulated the sentence by 6 months’ imprisonment.

9.  In respect of Charges 1 to 7 and 9 to 13 the judge stipulated a starting point for sentence of 3 years’ imprisonment, which he enhanced by 6 months’ imprisonment to reflect the factor of aggravation.  Accordingly, he stipulated a starting point of 42 months’ imprisonment for those charges.  Affording the applicant a discount of one third from that sentence, he imposed sentences of 28 months’ imprisonment for those charges.

10.  In respect of the burglary the subject of Charge 8, the judge noted that although the premises were domestic premises, nevertheless the burglary was of a storeroom. Accordingly, he stipulated a starting point of sentence of 2½ years’ imprisonment as being appropriate to the burglary of non‑domestic premises. Again, he enhanced that sentence by 6 months’ imprisonment and from the resulting total of 3 years’ imprisonment he afforded the applicant a discount of one third.  Accordingly, he imposed a sentence of 24 months’ imprisonment for that charge.

11.  In respect of the burglary the subject of Charge 14, the judge noted that the premises had been “observably vacant with no or little loss of property” and that the premises had not been occupied for over 20 years.  As a result, he stipulated a starting point of sentence of 2 years’ imprisonment, which he enhanced by six months for the factor of aggravation.  From the resulting total of 30 months’ imprisonment he afforded the applicant a discount of one third.  Accordingly, he imposed a sentence of 20 months’ imprisonment for that charge.

12.  In having regard to the appropriate totality of sentence to be imposed on the applicant, the judge said that he took into account the mitigating factors advanced on behalf of the applicant:[2]

“ ….there is his early plea of guilty, the remorse he has shown, the fact that he did advise the police of three burglaries he had committed which the police were unaware of, there is no vandalism or want of injury to any victim, the majority of the offences appeared to have been committed alone, only domestic premises, so there are no great organisation involved and all the premises are unoccupied.”

13.  In the result, having said that there were “a considerable number of burglaries are (sic) involved here over quite a period of time and these are serious offences” the judge stipulated a starting point for the 14 offences “in the region of 6½ years”.  Then, affording the applicant a discount of one third for his pleas of guilty the judge stipulated “a final overall sentence of 52 months’ imprisonment.”

14.  Finally, the judge ordered that 24 months of the sentences of imprisonment imposed in respect of Charges 8 to 14 were to be served consecutively to the sentences of imprisonment imposed in respect of Charges 1 to 7.  Accordingly, the overall sentence imposed on the applicant was 52 months’ imprisonment.

Grounds of Appeal

15.  Attached to Form XI, by which the applicant gave notice of his application for leave to appeal against sentence, were what was described as ‘grounds of appeal’, in which the applicant asserted, inter‑alia:

“ The Duty Lawyer told me that the maximum sentence of both charges. Burglary and attempted burglary, is only five years. But the judge imposed more than five years imprisonment to me-Total = 52 months.”

In addition, the applicant asserted that his wife had given birth to a baby girl in September 2016 and that he promised to pay $30,000, if he was given a deduction in sentence.

16.  In his oral submissions, the applicant sought the mercy of the court and said that he would not commit such crimes ever again.

Respondent’s submissions

17.  Ms Hermina Ng, on behalf of the respondent, submitted that the total sentence of 52 months’ imprisonment after pleas of guilty was neither manifestly excessive nor wrong in principle.  She submitted that the fact that the applicant had previous convictions for burglary and was a persistent offender, was an aggravating factor in the commission of the offences and that the judge was entitled to enhance sentence as he had done.

18.  She invited the Court to note that in the judgment of this Court in HKSAR v Xie Guohong^[3], in quashing a sentence of 5 years’ imprisonment imposed on the applicant following his pleas of guilty to four charges of burglary of non-domestic premises, in which a total of $470,000 of property had been stolen and not recovered, the Court had quashed the sentence and substituted a sentence of 4 years’ imprisonment.  In doing so, the Court said that the appropriate overall starting point for sentence was 6 years’ imprisonment.  The Court noted that although the applicant had six previous convictions, none of them were for similar offences.

A consideration of the submissions

19.  It is clear that the judge took a careful and measured approach to identifying the different starting points to be taken for sentence and in identifying the obvious aggravating factors in the commission of the offences.  It is not reasonably arguable that he erred in that analysis.  Similarly, having regard to the total loss of property, the period of time over which the multiple offences were committed it is not reasonably arguable that the judge erred in stipulating an overall starting point for sentence of 6½ years’ imprisonment and in imposing a total sentence of 52 months’ imprisonment.  The applicant himself raised no reasonably arguable grounds of appeal against sentence.

Conclusion

20.  For those reasons, I refused the application for leave to appeal against sentence.

21.  The applicant is advised that he has the right to renew his application for leave to appeal against sentence to the Full Court but is informed that if he does so, and the Full Court determines that the renewal is without justification, the Full Court may order that some of the time that the applicant has spent in custody pending the determination of his application shall not be reckoned as part of the term of his sentence.