HKSAR v. LUI YUEN SHUN

CACC 160/2016

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 160 OF 2016

(ON APPEAL FROM DCCC NO. 311 OF 2016)

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J U D G M E N T

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1.  The applicant was convicted on 20 May 2016 by HH Judge Casewell (“the judge”) in the District Court on his own pleas of two charges of burglary, contrary to section 11(1)(b) and (4) of the Theft Ordinance, Cap 210. On the same day, he was sentenced in respect of each charge to 32 months’ imprisonment, with 20 months of the sentence on Charge 2 being ordered to run consecutively to the sentence on Charge 1, making an overall sentence of 52 months’ imprisonment.

2.  The judge further ordered that the sentence of 52 months’ imprisonment was to be served concurrently with a sentence of 6 months’ imprisonment, which the judge was led to believe the applicant was serving for an offence of obtaining property by deception, contrary to section 17(1) of the same Ordinance (KCCC 4448/2015).  In fact, and unknown to the judge, the applicant’s sentence of 6 months’ imprisonment had already been completed.

3.  On 2 June 2016, the applicant filed a Notice of Application for Leave to Appeal (Form XI) and now applies by his counsel, Mr Randy Shek, for leave to appeal against sentence.

Facts

4.  The facts were not in dispute.  On 7 October 2015 at about 9:15 am, the applicant pressed the door bell of Room 2810, Wan Ying House, Chai Wan Estate, Chai Wan, Hong Kong.  The tenant, a Mr Lee (who was aged 76), was inside the flat at the time and answered the door. The applicant falsely claimed to be a neighbour living upstairs and asked to enter the flat on the pretext of looking for some clothing, which was said to have dropped onto Mr Lee’s outside clothes hanger.  Mr Lee allowed the applicant to enter and, after the applicant had pretended to look for his clothing, he asked Mr Lee to lend him HK$100 in order to make some spare keys. Mr Lee lent him the sum.  The applicant then left the flat.

5.  After he had gone, Mr Lee found that his wallet, which contained his Hong Kong Identity Card, Home Visit Permit, Senior Citizen Card and about HK$7,000 in cash had gone missing from the sitting room (Charge 1).

6.  Just over two weeks later, on 23 October 2015 at about 9:40 am, the applicant pressed the doorbell of Room 218, Choi Wah House, Choi Fai Estate, Ngau Chi Wan, Kowloon, Hong Kong.  The tenant, Madam Fu (who was aged 82), was at home at the time and answered the doorbell.  This time, the applicant falsely claimed that he was performing a building inspection and asked to enter her flat.  Believing what she was told, Madam Fu allowed the applicant into her flat.  After looking around for a while, the applicant claimed that he was a neighbour living upstairs and that he had dropped his keys downstairs.  He asked Madam Fu to look for the keys.  She did so but could not find the keys.  The applicant then asked Madam Fu to lend him some money purportedly to pay for a locksmith to unlock his door. Madam Fu said she had no money and the applicant left the flat.

7.  When the applicant had gone, Madam Fu found that her granddaughter’s mobile telephone and case had gone missing from a desk inside the sitting room (Charge 2).

8.  The applicant was identified from CCTV camera footage from the two Estates where the burglaries were committed.  He was also positively identified by the two victims at subsequent identification parades.

The applicant’s antecedents

9.  The applicant was 41 years old at the time of his sentence.  He was a divorced man with a daughter.  He had been convicted before the courts of no less than 33 offences, involving some 23 offences of dishonesty[1].  His first burglary conviction had been in 1996 for which he was sentenced to be detained in a Drug Addiction Treatment Centre.  In 1997, the applicant received an overall sentence of 4 years’ imprisonment in the District Court in respect of two separate offences of burglary, while in 2002 he was sentenced, again in the District Court, to 2 years’ imprisonment each in respect of two separate burglaries, with the second period of 2 years being ordered to start 9 months after the commencement of the first.  In 2007, the applicant appeared before the Court of Appeal in respect of his appeal from sentences imposed upon him in the District Court in 2006 for two offences of burglary.  As a result of his successful appeal, his overall sentence in respect of both offences was reduced to 4 years’ imprisonment.  The Court in HKSAR v Lui Yuen Shun described the applicant on that occasion as someone with “a bad criminal record”, for which the sentencing judge had been right to enhance the starting point for each offence to 45 months’ imprisonment[2].

10.  Since that appearance before the Court of Appeal in 2007, the applicant has had no further convictions for burglary (save for the present offences with which I am concerned), although he has been sent to prison on multiple occasions for offences of dishonesty.  The most recent appearance before the courts, according to the criminal record placed before the judge, was on 7 March 2016, where the applicant was sentenced to 6 months’ imprisonment and ordered to pay compensation for an offence of obtaining property by deception[3] (“the deception conviction”).  The facts of that matter were before the judge and he observed that they revealed a similar modus operandi to the present case.  The offence had been committed on 7 November 2015 (thus after the two burglary offences with which this application is concerned) when the applicant had knocked on the victim’s door purporting to be a neighbour living in the building, claiming yet again that he had lost his keys and asking for money to hire a locksmith.  On that occasion nothing was stolen from the flat and the applicant was charged in respect of the money that had been dishonestly obtained.

Mitigation

11.  The solicitor advocate appearing for the applicant at the sentencing hearing accepted that there was only one matter of mitigation he could sensibly advance before the court and that was the applicant’s timely pleas of guilty.

Reasons for sentence

12.  The judge first noted that the normal starting point for a person of clear record after trial for a domestic premises burglary would be 36 months’ imprisonment.  Having considered the applicant’s antecedents and his evident recidivism, the judge considered that some enhancement to the starting point was appropriate.

13.  The judge referred to the applicant’s previous appearance before the Court of Appeal in HKSAR v Lui Yuen Shun (supra) and observed that the judge at first instance had enhanced the starting points for two burglaries of domestic premises to 45 months’ imprisonment for each charge in view of his criminal record.  I note that the facts of the two charges before the Court of Appeal on that occasion were not dissimilar to the present offences, inasmuch as the applicant had inveigled himself into two domestic premises on a false pretext while they were occupied.  As I have said, the Court of Appeal endorsed those starting points.

14.  The judge noted that previous sentences had not deterred the applicant.  Accordingly, he adopted further enhanced starting points of 48 months’ imprisonment for each offence, which reduced for plea would result in sentences of 32 months’ imprisonment in respect of each offence.

15.  The judge was plainly aware of the question of totality, which included the 6-month sentence he believed the applicant was serving at the time.  Accordingly, in considering “the effect of totality on these figures”[4] (which in context must mean the sentences before and after plea for these two offences), the judge did two things: first, he ordered 20 months of the sentence on Charge 2 to run consecutively with the sentence on Charge 1, with the remaining 12 months to run concurrently, thus making an overall 52 months’ imprisonment; secondly, he ordered the sentence of 52 months to run concurrently with the sentence for the deception offence, which he believed the applicant was then serving.  The latter course appears to have been prompted by his view that the deception offence “would form part of the overall criminality the defendant was involved in October to early November 2015”.[5]

16.  In fact, although it was unknown to the judge and the parties at the time of sentence, the 6-month sentence of imprisonment in respect of the deception case had already been served by the time the judge came to sentence.

Grounds of appeal against sentence

17.  Mr Shek has articulated essentially two grounds of appeal on behalf of the applicant.  In essence, he argues, firstly, that the judge was wrong to have taken into consideration the deception offence in assessing the applicant’s overall criminality; secondly, the sentence was manifestly excessive inasmuch as the judge bore in mind three offences instead of two.

Respondent’s submissions

18.  Mr Andy Lo, for the respondent, submits that the judge has nowhere considered the deception case in arriving at the starting points for the two burglary offences.  Furthermore, he was correct in considering the question of totality, including any sentence to which the applicant was subject.  Finally, given the applicant’s criminal record, the overall sentence could not be impugned.

Consideration

19.  The problem for the applicant is this.  He has a truly appalling criminal record of dishonesty, including no less than seven previous offences of burglary.  It is also clear that he has developed a particular modus operandi of gaining access to domestic premises on a false pretext, while the occupants are present, in order to steal items while the occupants are distracted.  I note that the Court in HKSAR v Lui Yuen Shun (supra), at para 11, held:

“In our judgment, whether entry is gained to premises by sliding open a door or window or by a planned deception makes little difference.”

As I have pointed out, the two offences with which I am dealing, bear obvious factual similarities with the two burglary offences considered by the Court in the applicant’s previous appearance before the Court of Appeal.

20.  Therein lies the difficulty for the applicant. The Court of Appeal has already decided, in relation to this very applicant, that because of his already “bad criminal record” by 2006, an enhanced starting point of 45 months’ imprisonment was appropriate in respect of each of two similar offences of burglary.  Yet, numerous convictions for dishonesty later, and facing two more similar burglary offences, the judge in the present case considered that[6]:

“…it is clear that the previous sentences for both offences of theft and for burglary have not deterred the (applicant) from committing these offences and so the (applicant) can expect a further enhancement of the starting point in respect of these two charges.”

21.  I cannot see any appellate court disagreeing with the judge’s sentiments, given the applicant’s continuing criminal record and his persistence in committing the same kind of offence.  Indeed, Mr Shek realistically accepts that the court was entitled to consider further enhanced starting points in view of the applicant’s criminal record since 2007.  In my judgment, there is no reasonably arguable ground of appeal that the judge’s adoption of 48 months’ imprisonment in respect of the starting point for each offence was manifestly excessive or wrong in principle.

22.  Moreover, I cannot see any reasonably arguable ground of appeal arising from the ordering of the sentences for the two offences to run partly consecutively and partly concurrently with each other.  That was entirely appropriate when dealing with two separate burglary offences: see R v Tong Hoi Fung[7]. Indeed, that is precisely what the Court of Appeal did in the applicant’s earlier appeal case to which I have referred, although, in that case, as Mr Shek correctly points out, the Court ordered only 12 months of the sentence for the second burglary to run consecutively to the sentence for the first burglary.  Here, the consecutive element was 20 months’ imprisonment.

23.  The only question remaining, therefore, is whether or not there is a reasonably arguable ground of appeal that the overall sentence of 52 months’ imprisonment is manifestly excessive or wrong in principle.

24.  There again, the applicant has a difficulty. The Court of Appeal, in his earlier case, on not dissimilar facts, approved of an overall sentence for two cases of domestic burglary committed three days apart of 48 months’ imprisonment.  In the case before me, again for two cases of domestic burglary using the same modus operandi, the overall sentence was 52 months’ imprisonment.  Mr Lo says that there is only a difference of 4 months, yet, between January 2007, when the Court gave its decision in the applicant’s previous appeal, and the commission of the present offences in October 2015, the applicant has amassed no less than 11 further convictions at 6 different court appearances, 9 of those convictions involving offences of dishonesty.  Clearly, the applicant is not being deterred by the sentences passed upon him by the courts.  He continues to prey on vulnerable people in their own homes; in this case on two elderly people, who might have been very alarmed indeed and reacted with unexpected consequences, had they realised what was going on while the applicant was still in their flat.

25.  Accordingly, I can see no reasonably arguable ground of appeal against the overall sentence passed on the applicant.

26.  Furthermore, despite Mr Shek’s persuasive argument, I agree with Mr Lo that the judge has not taken into account the deception conviction in arriving at the starting points for the two burglary offences. What he did, as he was required to do, was to look at the overall totality of the offences with which he was dealing, bearing in mind, as he was led to believe, that the applicant was already serving a sentence of imprisonment in respect of the deception conviction. That the applicant had in fact finished his sentence in respect of the deception conviction does not to my mind make any difference; particularly where the present sentence is otherwise a proper one.

Conclusion

27.  This application is refused.  The applicant is duly advised that he has the right to renew his application for leave to appeal against sentence before the Court of Appeal, but he is also warned of the consequences of so doing, which may include a direction that part of the time spent in custody pending his appeal should not be reckoned as part of his sentence, if the Court of Appeal were to come to the view that there was no justification for the renewal of the application.