HKSAR v. TSANG KAI ON

[English Translation - 英譯本]

CACC 79/2010

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL JURISDICTION

CRIMINAL APPEAL NO. 79 OF 2010

(ON APPEAL FROM DCCC 1106 OF 2009)

__________________

BETWEEN

__________________

__________________

JUDGMENT

__________________

Barnes J (giving the judgment of the Court):

1.  The applicant was charged with three counts of burglary, the first two charges contrary to section 11(1)(b) and (4), Theft Ordinance, Cap. 210, Laws of Hong Kong and the third charge contrary to section 11(1)(a) and (4) of the said Ordinance. The applicant pleaded guilty to the first two charges before Deputy District Judge Sham and was sentenced to 43 months’ imprisonment while the third charge was left on the file.  The applicant now seeks leave to appeal against sentence.

Admitted facts

2.  The facts of the case were that in January and March 2009, the applicant sneaked into the flats in question to steal.

3.  In respect of Charge 1, the applicant sneaked into the flat in question around 1 pm on 6^th January 2009 to steal.  While doing so, he alerted the owner of the flat.  The applicant made good his escape.  Upon checking, the flat owner confirmed a loss of two hundred dollars in cash and a mobile phone which was worth HK$4,000.

4.  In respect of Charge 2, the applicant sneaked into the flat in question on the afternoon of 13^th March 2009 to steal.  At the time, the owner of the flat was not at home.  The applicant stole $8,000 in cash and approximately HK$33,000’s worth of property.  The male owner of the flat returned home and found the applicant.  He then called the police for assistance.  When the applicant left the flat, the male owner of the flat who was waiting outside the flat tried to intercept the applicant, but was scared off by the applicant who was holding a crowbar.  The applicant made good his escape.

5.  The applicant was subsequently arrested by the police in August when he was stopped for inquiries. Under caution, he admitted having committed the above offences.

Background of the applicant

6.  The 39-year-old applicant has three criminal convictions, one of which is for the same offence as the ones in the present case.  For that offence, the applicant was sentenced to 2½ years’ imprisonment.  In mitigation, counsel for the applicant submitted that the applicant was heavily in debt due to unemployment and thus committed the offences in desperation.

Reasons for sentence

7.  In sentencing, Deputy Judge Sham had considered the applicant’s background and the reasons for committing the offences.  This is a case involving domestic premises and the normal starting point for this is 3 years’ imprisonment.  The starting point for Charge 1 was one of 3 years.  The circumstances of the offence in Charge 2 were aggravated by the fact the applicant pointed a crowbar at the male flat owner to scare him off.  The starting point was one of 3½ years.  The starting points were reduced to 2 years and 28 months respectively on account of the applicant’s guilty pleas.  When considering the totality principle, Deputy Judge Sham referred to HKSAR v Ng Ngai Shan CACC197/2008 and he took the view that 19 months of the sentence imposed on Charge 2 should run consecutively to that on Charge 1, making a total term of 43 months.

Grounds of appeal

8.  Ms. Karen Cheung, counsel for the applicant, put forward two grounds of appeal:

(1) Deputy Judge Sham did not sufficiently reflect in the sentences imposed the confession voluntarily made by the applicant to the police notwithstanding a lack of evidence from the prosecution to link the two offences to him.

(2) Deputy Judge Sham inappropriately mentioned the present case in the same breath with Ng Ngai Shan (for Ng Ngai Shan committed another offence whilst on bail), and thereby ordered 19 months of the sentence imposed on Charge 2 to run consecutively to that on Charge 1.  The overall sentence and the proportion were both inconsistent with principle.

Respondent’s response

9.  Mr. Ira Lui, Senior Public Prosecutor for the Respondent, made a very fair submission in which he conceded that, in the light of the fact that the applicant had twice made good his escape and the owners of the flats concerned could not recognize the applicant, the prosecution would not have been able to prove the applicant’s guilt but for his confession.  Mr. Lui also submitted that Deputy Judge Sham did not exercise his discretion to reduce the sentence, but he did not give any reasons for it in his Reasons for Sentence.  Mr. Lui was of the view that this court could, upon referring to the authorities, exercise its discretion to slightly reduce the sentence imposed on the applicant.

10.  In respect of the overall sentence, having cited relevant authorities, Mr. Lui submitted that Deputy Judge Sham's ordering 19 months of the sentence imposed on Charge 2 to run consecutively to that on Charge 1 might be debatable.

Discussion

11.  For burglaries committed at domestic premises, the starting point is one of 3 years (see HKSAR v Ng Wai Hing [2003] 2 HKLRD 338).  The circumstances of the case were aggravated by the fact that these were premeditated crimes involving the use of a crowbar by the applicant. It is appropriate to enhance the starting point (see HKSAR v Chu Chun Man CACC415/2009).  The applicant is not a man of previously good character.  He has one previous conviction for the same offence, but he is not a persistent offender.

12.  On Charge 1, Deputy Judge Sham properly took a starting point of 3 years and reduced it by one-third to give the applicant the discount he was entitled to for his guilty plea.  The sentence was 2 years’ imprisonment.  On Charge 2, it is not improper for Deputy Judge Sham to increase the starting point to 3 years and 6 months. After a discount for the guilty plea, the sentence was 2 years and 4 months' imprisonment.

13.  We have considered relevant authorities, including Chu Chun Man (supra) and cases listed therein: HKSAR v Lee Kwok Chuen CACC445/2000; HKSAR v Hui Chi Tong CACC414/2007; HKSAR v Chan King Yuen CACC29/2010 and HKSAR v Hui Yee Lung CACC284/2009.  The total sentence of 43 months Deputy Judge Sham arrived at by making 19 months of the sentence imposed on Charge 2 consecutive to the 24 months imposed on Charge 1 is, in our view, manifestly excessive.

14.  That the applicant still voluntarily pleaded guilty notwithstanding a lack of sufficient evidence from the Prosecution showed that he was genuinely remorseful.  In these circumstances, the court should give a further discount to the applicant as an encouragement.  This is also in the public interest (see Secretary for Justice v Tsui Kim Ming Simon CAAR4/1997; HKSAR v Ng Wing Chung CACC176/2005 and HKSAR v Hui Chi Tong CACC414/2007).  Deputy Judge Sham did not give any further discount to acknowledge the fact that the applicant still voluntarily pleaded guilty in the above circumstances.  This made the sentence manifestly severe.

15.  In our view, had the applicant not pleaded guilty, as stated above, in the absence of sufficient evidence, the appropriate total sentence should have been 38 months.  We consider that the applicant should be given a further discount of 4 months for pleading guilty notwithstanding insufficient evidence.  Accordingly, the appropriate total sentence is 34 months.  

16.  In view of the reasons above, we grant the application for leave to appeal, and treating the application as the appeal itself, we allow the appeal and substitute the sentences with the following:

Charge (1):  20 months' imprisonment;

Charge (2):  14 months' imprisonment; to run consecutively, making a total of 34 months.