HKSAR v. NGAI KAI LEONG

CACC 83/2016

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 83 OF 2016

(ON APPEAL FROM DCCC NO. 1002 OF 2015)

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J U D G M E N T

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1.  Following his pleas of guilty before HH Judge Douglas Yau (“the judge”) in the District Court on 26 January 2016, the applicant was convicted of two charges of burglary, contrary to section 11(1)(b) and (4) of the Theft Ordinance, Cap 210 (Charges 3 and 4). Upon the applicant’s admission of the amended Summary of Facts and conviction on Charges 3 and 4, the prosecution applied to have Charges 1 and 2[1] remain on the file, not to be proceeded with without the leave of court. On 9 March 2016, the applicant was sentenced, in respect of Charge 3, to 21 months’ imprisonment and, in respect of Charge 4, also to 21 months’ imprisonment, with 9 months of that sentence being ordered to be served consecutively to the sentence on Charge 3, resulting in an overall sentence of 30 months’ imprisonment.

2.  On 21 March 2016, a Notice of application for leave to appeal (Form XI) was filed and the applicant now seeks leave to appeal against his sentence in person.

Facts

3.  At about 2:30 pm on 21 August 2015, a Mr Huang, a tourist from the Mainland, left Room 1088 (on the 10^th floor) of the Kwok Wah Hotel, situated at Wing Wah Building in Shantung Street, Mongkok. He returned to his room at about 9:30 pm that night to find that two mobile telephones and two chargers were missing.  Accordingly, a report was made to the police (Charge 4).

4.  At about 8:15 pm on the same day, a Mr Chung, a Taiwanese resident holding a Hong Kong Identity Card, left Room E6 (on the 5^th floor) of the Fortune Hotel, which is also situated in Wing Wah Building in Shantung Street, Mongkok.  Mr Chung returned to his room at around 10 pm the same day to find that some gramophone records, two hard disks and two DVDs were missing.  The matter was also reported to the police (Charge 3).

5.  Police investigations revealed that the applicant, together with two others, had rented Room 1088 of the Kwok Wah Hotel at about 5:50 pm on 18 August 2015, three days earlier.  It was noted by staff members of the Kwok Wah Hotel that the applicant and his companions had checked out of Room 1088 at about 1:30 pm on 20 August 2015 without returning the room key.  The manager of the Kwok Wah Hotel accordingly made arrangements to have the lock to the room door changed.

6.  CCTV recordings captured the applicant registering at the Kwok Wah Hotel on 18 August 2015.  The police officer who had been responsible for viewing the CCTV recordings spotted the applicant walking together with a male and a female along Nathan Road at 12:45 pm on 31 August 2015.  Other police officers joined in following the applicant, who was eventually intercepted at around 2:17 pm on Tai Po Road.  Upon search, a Hong Kong Identity Card in the name of “Tang Wai Lun” was found on the applicant.  That Identity Card did not belong to the applicant but had been used to hire Room 1088 on 18 August 2015.  A mobile telephone, belonging to Mr Huang was also found on the applicant.  The applicant was duly arrested.

7.  In a subsequent video recorded interview, the applicant admitted under caution that he had rented Room 1088 on 18 August 2015.  He claimed that he had returned to Room 1088 in order to retrieve something that he had left behind.  When he did so, he saw the two mobile telephones and took them out of greed.  He had subsequently thrown the key to Room 1088 away.  The applicant also admitted that he had burgled Room E6 of the Fortune Hotel in the same building, but that he had only stolen 20 gramophone records, which he had later thrown away.

Mitigation

8.  The applicant was 42 years old at the time of his sentence.  He had been before the courts on 13 previous occasions which involved 8 offences of dishonesty (namely, attempted theft, theft, obtaining property by deception and robbery) and numerous offences of possession of dangerous drugs and trafficking in dangerous drugs. He was educated to Form 3 level and was working as a part-time transportation worker at the time of his arrest. He lived with his mother, stepfather and 9 year-old daughter.  The applicant claimed he was contributing $5,000 per month to the mother of his daughter.

9.  Counsel acting on behalf of the applicant in the court below submitted that the principal mitigation derived from the applicant’s cooperation with the police and his guilty pleas.  He invited the court to grant an extra discount to the applicant for assisting the authorities prior to his commission of the present offences.

Reasons for sentence

10.  The judge considered the guidelines set out in HKSAR v Ng Wai Hing [2003] 2 HKLRD 338, which equated, absent aggravating features, the starting point for burglaries of hotel rooms with burglaries of domestic premises, namely 3 years’ imprisonment.  The judge accepted the defence submissions in relation to pre-trial assistance and granted a 40% discount, inclusive of the normal one-third discount for plea.  Accordingly, the starting points in respect of each charge were reduced from 3 years’ imprisonment to 21 months’ imprisonment.

11.  However, the judge considered that, although the offences took place on the same day and were close in proximity in terms of location and time, they were nevertheless separate offences.  The applicant could have committed one offence without the other, yet had decided to commit both.  Accordingly, he ordered 9 months of the sentence on Charge 4 to be served consecutively to the sentence on Charge 3, resulting in an overall sentence of 30 months’ imprisonment for the two offences.

Grounds of appeal against sentence

12.  In his initial ground of appeal attached to his Form XI Notice, the applicant complained that the sentences were too heavy, bearing in mind the totality principle.  In two letters filed with the court on 1 June and 16 June 2016, the applicant cited two sentences at first instance in the District Court in support of his submission that the sentence passed upon him was manifestly excessive.[2]

13.  Before me this morning, he suggests that, leaving aside the question of his assistance to the authorities and assuming that he had simply received the conventional one-third discount for plea, the overall sentence would have been 33 months’ (or 2 years and 9 months’) imprisonment, which was manifestly excessive when compared with other cases.

Respondent’s submissions

14.  Mr Daryanani, SPP, on behalf of the respondent, submits that there can be no issue about the starting points adopted in the present case.  The only issue is whether it was correct for the judge to order 9 months of the sentence on Charge 4 to run consecutively to the sentence on Charge 3.  He contends that each case depends on its own facts and that the ordering of 9 months’ imprisonment to run consecutively to the 21 months’ imprisonment passed on Charge 3 was within the appropriate range open to the judge in the exercise of his discretion.

15.  Mr Daryanani refers to the case of HKSAR v Lau Hiu Man [2013] 2 HKLRD 862, where the appellant committed two burglaries and an assault occasioning actual bodily harm.  Although both burglaries occurred on the same day in the same premises a few minutes apart, when the appellant returned to see what else he could steal, the Court of Appeal nevertheless considered 4 months of the sentence for the second burglary should run consecutively to the sentence for the first burglary.  The Court held, at para 21:

“There is no doubt in our mind that the two burglaries are quite separate and distinct and that the second burglary offence adds to the culpability of the first. There was nothing improper in the judge regarding this as justifying an additional period of imprisonment to the sentence of imprisonment she was imposing on the first burglary.”

16.  However, it should be observed that there were found to be three aggravating features to the burglaries in Lau Hiu Man, namely (i) occupancy of the householders at the time of the offences; (ii) the commission of the offences whilst on bail; and (iii) the fact that the applicant was a persistent offender.[3] Accordingly, the starting point in respect of each substantive offence of burglary was enhanced to 45 months’ (or 3 years and 9 months’) imprisonment, with 4 months of the sentence on the second burglary being ordered to run consecutively to the sentence on the first.  In addition, there was a further offence of assault occasioning actual bodily harm on the householder when trying to escape, for which the Court considered a starting point of 4 months’ imprisonment appropriate, duly discounted for plea to 2 months and 20 days’ imprisonment, of which 1 month was ordered to run consecutively to the sentences for the two burglaries.  The ordering of a consecutive element of 4 months’ imprisonment for the second burglary of the same premises ought, therefore, to be seen in the overall context of the facts of the case and the appellant’s criminality.

17.  In HKSAR v Lui Yuen Shun (unrep., CACC 322/2006), the appellant committed two domestic burglaries three days apart. He was sentenced to 30 months’ imprisonment in respect of each burglary charge and, although the Court allowed the overall appeal, 18 months’ imprisonment in respect of the second burglary was ordered to run consecutively to the first, making a total sentence of 4 years’ imprisonment.  Again, however, there were aggravating features to the offences, which justified each individual charge meriting a starting point of 45 months’ imprisonment (discounted to 30 months’ imprisonment upon plea).  So, the extent of the consecutive element to some extent depended on the seriousness of, and sentence appropriate to, each individual offence.

18.  In respect of the two cases referred to by the applicant, HKSAR v The Cheung Fung, DCCC 824/2015 & 50/2016 (consolidated) involved two domestic burglaries over three days in which 4 months of the sentence for the second burglary was made consecutive to the sentence for the first.  There were apparently no aggravating features, each burglary meriting a starting point of 3 years’ imprisonment (discounted to 2 years’ for plea).

19.  In HKSAR v Cheung Wing Lap, DCCC 765/2014, the offender committed two domestic burglaries, eight weeks and two days apart.  Both burglaries were in different buildings but in the same district of Wong Tai Sin. The judge ordered 2 months of the sentence for the second burglary to run consecutively to the first.  A starting point of 3 years’ imprisonment (discounted to 2 years’ for plea) was taken in respect of each offence.

20.  Mr Daryanani submits that the above cases demonstrate that each case will depend on its own facts, and a sentencing judge has a wide discretion when dealing with multiple burglaries as to how much of one sentence should be ordered to run consecutively or concurrently with another within the principle of totality.  As long as the ultimate sentence is not manifestly excessive or wrong in principle, there should not be a proper basis for review.

Consideration

21.  It is clear from the judgment in Ng Wai Hing that the burglary of a hotel room is to be equated with a domestic burglary for sentencing purposes.  Further, the judge was perfectly entitled to order a consecutive element in respect of the second burglary, given that it was a separate offence in respect of different premises, albeit in the same building, and added to the culpability of the first offence.  As Mr Daryanani correctly says, the only question is whether, on these facts and in these circumstances, the judge should have ordered as much as 9 months of the sentence for the second offence to run consecutively to the sentence for the first offence.

22.  As I have pointed out from my analysis of Lau Hiu Man and Liu Yuen Shun above[4], the quantification of the consecutive element between two burglary offences depends on the facts of the case and the seriousness of the individual substantive offences.  In both cases, there were significant aggravating features which meant that the individual starting points were rather higher than the starting points in the present case, in which the judge expressly determined there were no aggravating features.[5]  Equally, the second burglary in Lau Hiu Man was of the same premises some minutes later.  The consecutive elements adopted in each case as between the two burglary offences must be seen in their respective contexts.

23.  I am not influenced by the two first instance cases referred to by the applicant.  They are not appellate authorities and are in no sense binding on the Court of Appeal: see HKSAR v Nkwo Nnaemeka Darlington [2016] 1 HKLRD 692, at para 36.  That said, both sentencing courts applied a short consecutive element where each of the two offences concerned was what I might term a ‘basic’ domestic burglary offence, that is, one without any aggravating features at all.

24.  On the other hand, the offences with which I am concerned were not chance or opportunistic burglaries.  In respect of Charge 4 in particular, the applicant had registered at the hotel on 18 August 2015, using someone else’s Identity Card[6], retained the key to the room when he checked out on 20 August, and then burgled the same room the following day.  It is not entirely clear whether or not he was able to gain access to the room using the key he had retained but, whatever the position, he clearly returned to that particular hotel with the intention of burgling that particular room.  The assertion made in his interview that he was returning to the room because he had left something behind was wisely not advanced in mitigation on his behalf.  Had it been advanced, the judge would have been entitled to reject it out of hand as fanciful.  Had there been a scintilla of truth in it, one would have at least expected the applicant to contact the hotel or visit its reception beforehand.

25.  Furthermore, the victims of both offences, as might be expected since they involved burglaries of hotel rooms, were visitors to Hong Kong: Mr Huang having arrived with his family as a tourist for sightseeing[7], Mr Chung having come on business.[8]  The burglary of hotel rooms has obvious implications for the reputation of Hong Kong’s hotel and service industry, which is a highly prized and important part of the life of this City.

26.  Finally, while the applicant had no previous convictions for burglary, he was not of good character and had numerous previous convictions for theft and other offences of dishonesty.  Although the judge was perhaps generous in finding that the applicant’s criminal record was not an aggravating factor, it is still a relevant matter in determining whether or not it is reasonably arguable that the overall sentence for someone with the applicant’s antecedents was manifestly excessive.

27.  In all the circumstances, I have come to the view that it is not reasonably arguable that the ordering of 9 months’ imprisonment in respect of the second of two separate burglary offences involving hotel rooms was outside the range of options open to the judge, or that its imposition has resulted in a manifestly excessive overall sentence.

28.  For the above reasons, the application for leave to appeal against sentence is 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 his application.