HKSAR v. WONG YIK SUN

CACC 244/2015

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 244 OF 2015

(ON APPEAL FROM DCCC NO. 444 OF 2015)

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JUDGMENT
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1. On 17 July 2015, the applicant appeared before HH Judge Johnny Chan in the District Court, where he pleaded guilty to two charges of burglary, contrary to section 11(1)(b) and (4) of the Theft Ordinance, Cap 210. After hearing mitigation, the judge sentenced him to 22 months’ imprisonment on each of the two charges, with 8 months of the sentence on Charge 2 being ordered to run consecutively to the sentence on Charge 1, resulting in an overall sentence of 30 months’ imprisonment. The applicant now seeks leave to appeal against sentence.

The prosecution case

2. The first offence took place on 15 April 2015; the second, on 23 April 2015.  The burgled premises were both restaurants, which at the time were not yet open for business, in the Happy Valley area.

3. At about 10 am in the morning of 15 April 2015, the proprietor of a restaurant in Caroline Hill Road returned to his restaurant but subsequently left about 20 minutes later to move his private car, leaving the premises temporarily unattended, with the door closed but unsecured.  When he came back, he noticed a male, whom he did not know, walking out from his restaurant.  The male asked the proprietor whether the restaurant was open.  The proprietor replied in the negative, whereupon the male left.

4. Finding the male’s conduct suspicious, the proprietor checked his restaurant and discovered that a plastic box containing tips in the amount of $130 was missing.  The CCTV recordings of the restaurant showed that the same male person had walked into the restaurant, picked up the plastic box, put it in his rucksack, and left.  A report was accordingly made to the police (Charge 1).

5. Eight days later, on 23 April 2015, a dishwashing worker at a restaurant in Sing Woo Road returned to work at around 8:10 am to prepare for her daily work.  She unlocked the main entrance of the restaurant and placed a “Please Wait” sign on the entrance.  The lights in the premises remained switched off, while the worker walked into the rear lane behind the restaurant to read her newspaper, leaving behind in the premises her handbag containing, among other things, HK$2,000 in cash and six red packets containing a total of HK$100 in cash.  There was no other person inside the restaurant at that time.

6. Coincidentally, at 8:51 am on 23 April 2015, a team of police officers happened to be carrying out patrol duties in uniform in the Happy Valley area.  When they reached Sing Woo Road, they initially saw the applicant wandering around outside a particular restaurant, which aroused their suspicions and caused them to keep him under observation.  They saw the applicant enter the restaurant by pushing open the glass door and then, subsequently at 8:54 am, emerge from the restaurant in a hurried manner.  Accordingly, they intercepted the applicant for inquiry and a body search.  Inside the applicant’s rear right trouser pocket, the officers found two HK$1,000 banknotes and six red packets containing a total of $100 in cash; while in the rucksack, they found HK$254.30 and RMB11 in coins, as well as seven Octopus cards.

7. Initially, the applicant claimed that he had gone into the restaurant to use the lavatory.  However, following further inquiries with the worker concerned, the police learnt that HK$2,000 in cash and six red packets had been removed from her handbag.  No other items were found to be missing from the restaurant.  The applicant was accordingly arrested for burglary and, under caution, admitted having entered the premises and stolen the property concerned out of momentary greed (Charge 2).

8. At a later stage of police enquiries, when it became apparent that his general appearance matched images captured by the CCTV of the restaurant concerned in Charge 1, the applicant was further cautioned for the earlier burglary of the restaurant in Caroline Hill Road.  The applicant then admitted that he had also entered that particular restaurant and stolen a few tens of dollars, again out of momentary greed.

9. In two video recorded interviews, the applicant admitted both offences under caution.

Mitigation

10. The applicant was 37 years of age at the time of his sentence.  He had made 11 previous court appearances and been convicted of a total of 13 offences, of which 10 were for offences of dishonesty, namely, theft, burglary or attempted burglary.  In his written submissions in mitigation, the applicant’s solicitor outlined the applicant’s previous working history after completing Form 3; beginning as a bus repair technician from 1997 to 2000 until his last employment as a gardening worker, which ended in February 2015.  He was unemployed at the time of his arrest, single and residing with his parents.

11. It was said on the applicant’s behalf that as a child, he had been neglected by his parents, resulting in his mixing with, and being influenced by, dubious peers and associates.  It was further said that he found it difficult to integrate into society.

Reasons for sentence

12. The court considered that the correct starting point for a burglary of non-domestic premises was 30 months’ imprisonment.  However, in the present case, the offence was aggravated by the criminal record of the applicant, in which he had eight previous convictions for theft and two for burglary or attempted burglary; accordingly, the court enhanced the usual starting point for each offence by 3 months to 33 months.

13. Apart from the applicant’s guilty plea, the court considered that there were no other mitigating factors which could further reduce the sentence.  Allowing a one-third discount for plea, the applicant was sentenced to 22 months’ imprisonment in respect of each charge.  Giving consideration to the principle of totality, the court further ordered 8 months of the sentence for Charge 2 to run consecutively to the sentence for Charge 1, in order to adequately reflect the overall criminality of two separate offences.  The overall sentence thus became 30 months’ imprisonment.

14. The judge also made a compensation order of HK$130 to the proprietor of the restaurant in Charge 1.

Grounds of appeal

15. In his homemade grounds of appeal filed on 27 July 2015, the applicant complains that the sentence passed on him was too heavy.  However, the applicant has not filed any submissions to further elaborate upon his grounds.

Consideration

16. The ultimate question for me at this stage on an application for leave to appeal against sentence is whether it is reasonably arguable that the overall sentence of 22 months’ imprisonment for the two offences was manifestly excessive or wrong in principle. I do not consider it is reasonably arguable for these reasons.

17. The notion that these were opportunist offences is somewhat undermined by the fact that the circumstances of the two burglaries were very similar involving the applicant’s intrusion into two restaurants which were not yet open for business.  The burglary of one restaurant might have been seen as opportunism: the burglary in similar circumstances of two restaurants in the same area eight days apart suggests something of a habit.  The applicant is no stranger to offences of dishonesty or, indeed, to offences of burglary, although his criminal record would not on its face seem to cast him as a professional burglar.

18. On authority, the judge was correct to use a starting point of 2½ years’ imprisonment for a single burglary of non-domestic premises such as each of the two restaurants concerned, without any attendant aggravating features. He was further entitled to enhance that starting point for the applicant’s appalling record of dishonesty, including previous burglary or attempted burglary offences.  Indeed, the applicant candidly tells me this morning that on previous occasions when he has employed the same modus operandi in respect of other restaurants, he has only been charged with theft.  Plainly, there needed to be a significant element of personal and public deterrence in sentencing the applicant.  The judge was also right to impose a consecutive element as between the two offences committed on two different restaurants on two different dates.  See HKSAR v Cheng Wai Kai (unrep., CACC 338/2007), in particular at para’s 14-16 for the above sentencing principles.

Conclusion

19. The application is accordingly 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.