HKSAR v. SHA KAI LUN

CACC 239/2016

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 239 OF 2016

(ON APPEAL FROM DCCC NO 234 OF 2016)

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J U D G M E N T

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1.  On 8 July 2016, the applicant pleaded guilty before Deputy Judge Chainrai (“the judge”) in the District Court to two charges, namely attempted burglary, contrary to section 11(1)(a) and (4) of the Theft Ordinance, Cap 210 and section 159G of the Crimes Ordinance, Cap 200 (Charge 1), and burglary, contrary to section 11(1)(b) and (4) of the Theft Ordinance (Charge 2). On 22 July 2016, he was sentenced to a total of 3 years’ imprisonment, which was ordered to be served consecutively to a sentence of 4 months’ imprisonment he was then serving.[1]

2.  By a notice of application for leave to appeal filed on 1 August 2016, the applicant applied for leave to appeal against his sentence.

The facts

Charge 1

3.  At shortly after midnight on 16 September 2015, PW1 locked up his jewellery shop, known as “Begin Diamond Limited”, situated at Room A, 1/F, 58-60 Kimberly Road, Tsim Sha Tsui, and left the premises.  When he returned to his shop at around 11:45 am the same day, he discovered that the circular ventilation fan installed at the top window of the toilet in the shop had been damaged, the surrounding metal frame dismantled and the glass broken.  It was clear that someone had climbed from the ground floor into the backyard/balcony and attempted to enter the premises.  The ventilation fan cost HK$3,000 to repair.

4.  Images captured on a Closed Circuit Television (“CCTV”) camera installed outside the toilet at the backyard/balcony showed the applicant, at 3:30 am, using a screwdriver to tilt the CCTV camera to one side.

5.  The applicant was duly arrested in Nathan Road on 11 October 2015.  Under caution at the scene of arrest, he admitted that he had wanted to climb into and burgle the shop, but he had failed because he was unable to remove the ventilation fan.  In a subsequent video recorded interview under caution at the police station on 12 October 2015, the applicant nevertheless denied the offence.

Charge 2

6.  At 4 am on 25 September 2015, PW2, the manager of a restaurant known as “Good Take OK”, situated at 1/F, 1 Blenheim Road, Tsim Sha Tsui, locked up his restaurant and left the premises.  When he returned at 6 pm the same day, he found that a glass panel of the back door had been removed and the door unlocked.  The wine cabinet in the restaurant had been prized open, and 5 bottles of wine valued at HK$9,000 stolen.  The cost of repairs to the back door and wine cabinet were HK$6,000 and HK$7,000 respectively.

7.  A CCTV camera inside the restaurant captured images of the applicant for a few seconds at 11:07 am that morning before the power supply was switched off.

8.  In a further video recorded interview under caution on 13 October 2015, the applicant admitted that he had visited the restaurant in the past in order to repair its air-conditioners, but denied going there on 25 September 2015.  His ex-employer, PW4, confirmed that he had sent the applicant to the restaurant for the repair and maintenance of its air-conditioners sometime in August 2015.

Mitigation

9.  It was submitted by counsel on the applicant’s behalf that he had been working as an air-conditioning repair and maintenance worker since the age of 17; he had sustained injury in a work-related accident in mid-2014 but, since his employer had not taken out employee’s compensation insurance, he was persuaded not to make any claim against him on the promise that the employer would compensate him for his injury.  However, his employer did not compensate him, but instead asked him to switch from a full time employee to a casual worker.  The applicant’s income had accordingly dropped drastically and he was still owed money by his employer.  Furthermore, the applicant’s wife was pregnant with their second child, and he needed money for her medical expenses.  It was said that against this background the applicant committed the offences.

Reasons for sentence

10.  The judge noted that the applicant had 13 previous convictions at 8 previous court appearances, of which 6 convictions were for offences of burglary or attempted burglary and 3 were for robbery.  His last conviction had been on 7 July 2015 for an offence of theft, when he was sentenced to 4 months’ imprisonment.  That offence had been committed whilst on bail for the present offences.

11.  The judge acknowledged the usual starting point for a single burglary of commercial premises, committed by a first offender of full age with no aggravating features, to be 2½ years’ imprisonment.  Although there were no aggravating features in respect of the commission of the individual offences themselves, and the value of the stolen property was not high, she regarded the applicant’s previous record for burglary as an aggravating factor in sentence.

12.  Accordingly, she adopted a starting point of 3 years’ imprisonment in respect of each offence, which she discounted to 2 years’ imprisonment for plea.  She then order 1 year of the sentence on Charge 2 to run consecutively to the sentence on Charge 1, making a total of 3 years’ imprisonment for the two offences.

13.  Since the theft offence for which the applicant was currently serving a sentence of 4 months’ imprisonment was committed whilst on bail for the present offences, the judge considered that the sentences for the offences with which she was dealing should run consecutively to the existing sentence.

Grounds of appeal

14.  In his Form XI notice, the applicant merely stated that he did not have the relevant sentencing guidelines with him and was thus unable to show why the sentence was too heavy.  He said he would submit detailed grounds in due course.  When this matter came before me on 21 December, the applicant raised the point for the first time in oral submissions that he had subsequently been dealt with by two other courts in respect of three other offences, namely Possession of dangerous drugs, contrary to section 8(1) (a) and (2) of the Dangerous Drugs Ordinance, Cap 134 and Possession of equipment fit and intended for smoking, injecting or inhaling a dangerous drug, contrary to section 36(1) of the Dangerous Drugs Ordinance (“KCCC 545/2016”); and Handling stolen goods, contrary to section 24 of the Theft Ordinance (“DCCC 404/2016”).  For these other offences, he had received a further term of 16 months’ imprisonment, namely 8 months’ imprisonment in KCCC 545/2016 and 8 months’ imprisonment in DCCC 404/2016, both of which sentences were ordered to run consecutively to each other and to the present sentences with which I am concerned in this application.  His complaint is that, if he had been sentenced altogether at the same time for all three offences, as well as for the offences now before me, he would have received a lower sentence than 52 months’ imprisonment (ie 36 months + 8 months + 8 months = 52 months’ imprisonment).

15.  Indeed, he goes further and says that if the offence of theft, for which he was already serving a sentence of 4 months’ imprisonment, and to which the sentence for the present offences was ordered to run consecutively, had been dealt with at the same time as all the others, he would have received a sentenced of less than 56 months’ imprisonment.

16.  Accordingly, I adjourned this matter until today, in order, among other things, to obtain an updated criminal record showing the new convictions, and for enquiries to be made about the facts of the other offences and, in particular, when they were committed and sentenced in relation to the offences before me in this application.  Mr Lo, on behalf of the respondent, has very helpfully reduced the information into further submissions, as well as two tables showing the chronology of the various offences and sentences, their relationship to each other, and the courts which dealt with them.

Respondent’s submissions

17.  In respect of the offences of attempted burglary and burglary before me in this application for leave to appeal, Mr Lo submits that the sentences passed by the judge were neither wrong in principle nor manifestly excessive.  The judge correctly considered current sentencing guidelines for the burglary of non-domestic premises and, in view of the applicant’s recidivism, was right to adopt a higher starting point in respect of each charge.  Further, the passing of 3 years’ imprisonment to reflect the applicant’s overall criminality involved in committing two separate and distinct offences 9 days apart was unimpeachable.  He also submits that the judge had expressly considered the principle of totality but nevertheless determined that the sentences should be served consecutively to the existing sentence for theft.

18.  Mr Lo asks the court to note that the applicant had previously been sentenced on his own pleas to a total of 3½ years’ imprisonment in 2010, in respect of four burglaries of different commercial premises.[2]

19.  He further relies on the authorities of HKSAR v Ng Ngai Shan[3] and HKSAR v Hui Yee Lung[4] to demonstrate that the sentence in the present case was entirely appropriate in all the circumstances.

Consideration

20.  So far as the specific matter before me for which leave is sought, the judge was dealing with two similar offences (attempted burglary and burglary), albeit committed on different days in relation to different premises.  Whilst it is true that the value of items stolen was not high, the overall loss in terms of damage and stolen property was HK$25,000, which was not a small amount either.  The judge was entirely correct, in accordance with authority, to view the applicant’s poor criminal record as an aggravating factor justifying the enhancement of the usual starting point for a non-domestic burglary (or attempted burglary).

21.  She was also correct, and acting in accordance with long-established authority, to pass partly concurrent and partly consecutive sentences in respect of two separate and distinct but similar offences.  Accordingly, I can see no reasonably arguable ground of appeal in relation to the overall sentence of 3 years’ imprisonment passed in respect of the two offences with which I am concerned.

22.  Furthermore, the sentence for which the applicant was currently serving a sentence of 4 months’ imprisonment was a wholly different offence, but committed when the applicant was on bail for the present offences.  The judge was correct, therefore, to order the sentences to run consecutively to the existing sentence.  I can see no reasonably arguable ground of appeal in respect of this complaint either.

23.  As for the other offences for which the applicant was subsequently sentenced in KCCC 545/2016 and DCCC 404/2016, it is now clear to me that they too were committed whilst the applicant was on bail for the present offences.  Since they were committed on court bail and were separate and distinct offences, it is hardly surprising that there should have been a consecutive element to those sentences as between each other and in relation to the sentence for the present offences.

24.  Mr Lo makes the point that the sentence in DCCC 404/2016 was adjusted from what it might otherwise have been by making 10 months of the sentence concurrent with his existing sentences.  Therefore, at least the judge passing that sentence has recognised the overall totality of sentence to which the applicant was subject.  In any event, he submits that the proper forum for complaining about those sentences is the appeals from KCCC 545/2016 and DCCC 404/2016.  The applicant has already lodged an appeal against his sentence in respect of KCCC 545/2016, but not against the sentence in DCCC 404/2016, although he has another 15 days to do so, that sentence having only been passed 13 days ago.

25.  I agree with Mr Lo, for whose assistance on this matter I am grateful.  I can see no arguable grounds of appeal in respect of the present sentences with which I am concerned in this application for leave. The judge can hardly be criticised for not dealing with matters which were not before her, and which were sentenced by different courts at a later date.  If there is any merit in the overall totality argument arising from the subsequent sentences, the appropriate forum to make the argument is at the appeals against those sentences.  After all, even if the argument has merit, it could not affect the sentences for the present offences, which are in line with sentencing principle and authority.

26.  However, in deference to the applicant who is unrepresented, and in order to streamline those appeals and ensure that the point is properly considered at one appeal, I will order, in the event that the applicant also appeals against the sentence passed in DCCC 404/2016, that the appeals from KCCC 545/2016 and DCCC 404/2016 should be dealt with together at a consolidated hearing before the Court of Appeal.  The Court will then, in deciding the appeal from KCCC 545/2016 and whether to grant leave in DCCC 404/2016, have the benefit of this judgment in addressing the applicant’s complaint, which really goes to the sentences for those offences and not the sentences for the present offences before me.  If, however, the applicant does not appeal against his sentence in DCCC 404/2016, then there is no need for such an order of consolidation and the appeal against the sentence in KCCC 545/2016 can be dealt with in the normal way at a Magistracy Appeal.

27.  So far as the application for leave to appeal against sentence in respect of the present offences before me is concerned, the application is refused.  The applicant is advised that he has the right to renew his application for leave to appeal 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, if the Court of Appeal were to come to the view that there was no justification for the renewal of the application.

[1] The applicant was sentenced to 4 months’ imprisonment on 7 July 2016 for an offence of theft.

[2] HKSAR v Sha Kai Lun DCCC 1157/2010, 23 November 2010.

[3] HKSAR v Ng Ngai Shan (unrep.,CACC 197/2008, 7 November 2008).

[4] HKSAR v Hui Yee Lung (unrep., CACC 284/2009, 22 July 2010).