HKSAR v. LAU HAK KAN

CACC 341/2015

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 341 OF 2015

(ON APPEAL FROM DCCC NO. 159 OF 2015)

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J U D G M E N T

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1. On 15 April 2015, the applicant pleaded guilty before HH Judge Dufton in the District Court to a single charge of burglary, contrary to section 11(1)(b) and (4) of the Theft Ordinance, Cap 210. On the same day, the judge sentenced him to 2 years and 1 month imprisonment.

2. By an affirmation dated 7 October 2015 and a Notice of application for leave to appeal dated 8 October 2015, the applicant applied for leave to appeal against his sentence out of time.  By the time of the lodging of his Notice, he was some 5 months out of time.  He has explained in his affirmation that he has decided to appeal because his wife is sick.

The facts admitted by the applicant

3. In the early evening of 9 January 2015, the applicant burgled a residential flat on the 21^st floor of a building in Tseng Choi Street in Tuen Mun, New Territories.  It had been noticed by the occupier of the premises that spare keys to the flat, which had previously been kept in a shoe cabinet outside the said unit, had gone missing four days earlier.  The occupiers of the said flat had locked the gate and the wooden door when they left at around 6:30 pm on the day of the burglary.  At around 10:40 pm, the premises were found to have been ransacked.  There were no marks of prising on either the metal gate or the wooden door.  A laptop computer, 436 Octopus cards with a stored value of about HK$21,800, 20 Mannings cash coupons each valued at HK$100, and cash in the sums of RMB100, HKD100, USD100 and SGD100 had been stolen.  A report was made to the police.

4. The applicant was arrested the following day. Under caution he admitted that he had burgled the flat in question.  In a subsequent interview, conducted with the assistance of a sign language interpreter, the applicant admitted, inter alia, the following:-

(a) On 9 January 2015, he went up to the 22^nd floor of the building to see if he could find any safety shoes to steal;

(b) He discovered that the door of the flat on the 21^st floor was not locked, and he therefore entered the flat to see if there was anything worth stealing;

(c) He put the stolen property identified above into a black recycle bag; and

(d) He later disposed of the bag together with all the other stolen property, save for the Octopus cards, having failed in his attempts to sell the laptop computer.

5. The Octopus cards were recovered by the police from the applicant’s wardrobe at home.  He lived on the 2^nd floor of the same building as the burgled premises.

The judge’s reasons for sentence

6. The judge took into consideration the mitigation advanced on the applicant’s behalf[1], including a mitigation letter written by the applicant himself[2].  He noted that the applicant’s hearing had been impaired since a very young age and that he had speech difficulties.  The applicant had been a drug addict since the age of 15, and unable to find regular employment.

7. A starting point of 3 years’ imprisonment was adopted.  The judge did not accept that the circumstances of the burglary were opportunistic, as where a defendant had passed by an open door or vacant premises where food or items of little value were stolen (see, for example, HKSAR v Cheng To Ming[3] and HKSAR v Chau Man Ying[4]).  He noted, in particular, that it had been specifically stated in the reasons for sentence of the District Judge who had sentenced him in respect of his last burglary offence in 2009, that the courts would not continue to indulge the applicant by passing reduced sentences on account of his disabilities.

8. Taking into account the applicant’s criminal record, which included 13 offences of dishonesty, of which 6 were burglary (or attempted burglary), the judge regarded the applicant as a persistent offender.  The starting point was thereby enhanced by 3 months.

9. The applicant was given the full one-third discount for his guilty plea, hence the sentence was reduced from 3 years and 3 months’ to 2 years and 2 months’ imprisonment.  The judge then, as an act of mercy, reduced the sentence by one month, given that the applicant’s father had died three days before sentence, while the applicant was on remand in custody.  Accordingly, the applicant was sentenced to 2 years and 1 month imprisonment.

Grounds of appeal against sentence

10. In his home-made grounds of appeal dated 20 November 2015, the applicant said that his hearing was impaired and that his father, who had suffered from hepatic cancer, had passed away just before his sentence.  Further, in mid-October 2015, whilst in custody, he learned that his wife was also suffering from hepatitis and was required to receive a further check-up in Tuen Mun Hospital in December 2015.  I have today been shown a letter from Tuen Mun Hospital dated 16 December 2015 confirming that the applicant’s wife is receiving treatment for hepatitis.  I understand the position is that she is being treated as an outpatient, but that sometimes she is required to be hospitalised for short periods of time.  The applicant has stressed that there would be no one to take care of his children, who are 4 and 12 years of age respectively, if his wife has to remain in hospital for any length of time; particularly as his own mother is old and in poor health herself.  Accordingly, he wishes to be released from custody as soon as possible in order to be in a position to take care of his children.

Respondent’s submissions

11. Ms Parwani, in written submissions for the respondent, opposes the application for leave to appeal against sentence out of time.  She points to the judge’s rejection during mitigation of the applicant’s bare assertion that the door to the flat happened to have been left unlocked, so that his entry could be said to be opportunistic, and relies in support of her position on what was said in HKSAR v Lau Chung-tim[5], at para 18:

“…the judge was entitled to draw the inference she did. She had explicitly conveyed the fact that she did not accept defence counsel’s submissions as to the spontaneity of the applicant’s act, which counsel did not seek to support with evidence, and she was justified on the admitted facts alone for the view she ultimately formed.”[6]

12. In light of the circumstances stated in the admitted summary of facts, which were distinguishable from the facts in Cheng To Ming and Chau Man Ying, the respondent submits that the judge was correct in declining to adopt a lower starting point on the basis that the burglary was opportunistic.

13. Concerning the domestic circumstances of the applicant, Ms Parwani submits that the family hardship contended for by the applicant is irrelevant for sentencing purposes and should be disregarded: see HKSAR v Shum Chung Wai[7].  She further states that there were no exceptional humanitarian circumstances in the present case to warrant a further reduction of sentence, save perhaps for the recent death of the applicant’s father immediately prior to sentence, which had been accorded a specific extra discount of one month by the judge as an act of mercy.

Consideration

14. The 3 year starting point for the burglary of domestic premises was entirely in accordance with established authority.  Furthermore, the judge was correct to reject the assertion that the crime may have been opportunistic.  The admitted summary of facts made clear that the keys to the burgled premises had gone missing four days before the burglary, the occupiers had properly secured both the metal gate and the wooden door to the premises before leaving the flat on the day in question, and the applicant himself lived in the building on 2^nd floor.  Against those admissions of fact, the judge plainly indicated during mitigation that he was not prepared to accept the implausible assertion that the applicant had fortuitously found the door to the flat to be unlocked, when he just happened to be walking past it on his way down from the 22^nd floor; where, coincidentally, he had gone to see if there were any safety shoes to steal.

15. The judge was further entitled, on authority, to enhance the starting point because of the applicant’s appalling record for repeated burglary offences.  There can be no real complaint about the notional sentence after trial of 3 years and 3 months’ imprisonment.

16. The applicant does have an unfortunate history of disability and personal circumstance.  However, he has now gone beyond the stage when any significant recognition can be given to these factors.  To put it bluntly, he is a recidivist and a persistent burglar.  The public and his neighbours are entitled to be protected from his depredations.

17. The judge gave the applicant a full one-third discount for his plea of guilty plus a further month discount for the recent death of his father, as he was entitled to do in his discretion as an act of mercy.  However, I can see no reasonable argument that the applicant should have been entitled to any further reduction beyond that which he received.

Conclusion

18. The application is therefore refused.  The applicant is duly advised of his right to renew his application for leave to appeal against sentence to the Court of Appeal, but is also warned of the consequences of so doing, which may include a direction for any loss of time spent in custody pending his appeal, if the Court of Appeal were to come to the view that there was no justification for the renewal of the application.

[1] Including the circumstance claimed by the applicant as to how he had gained access to the premises (raising the issue of whether it was an opportunistic burglary); and that the applicant pleaded guilty and was co-operative.

[2] In gist, the applicant said that (i) he had experienced hardship in seeking employment because of his disabilities; (ii) he had a son and a daughter; (iii) his wife suffered from a psychiatric illness; (iv) he was remorseful for the offence, which he had committed out of greed; and (v) his father, who had suffered from lung disease, had died three days before the date of his sentence.

[3] HKSAR v Cheng To Ming [2006] 2 HKLRD 260

[4] HKSAR v Chau Man Ying (unrep., CACC 439/2011)

[5] HKSAR v Lau Chung-tim (unrep., CACC 258/2014)

[6] Paragraph 18 of CACC 258/2014

[7] HKSAR v Shum Chung Wai [2002] 2 HKLRD 81, at para 19