HKSAR v. PAKIT JONI

CACC 10/2013

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 10 OF 2013

(ON APPEAL FROM DCCC NO 983 OF 2012)

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J U D G M E N T

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1.  The applicant pleaded guilty on 27 December 2012 before District Court Judge Browne to three charges of burglary contrary to section 11(1)(b) and (4) of the Theft Ordinance, Cap 210. 

2.  Charge 1 was alleged to have been committed on an unknown day between 30 January and 10 February 2012.  Charge 2 was alleged to have been committed on 27 July 2012 and Charge 3 was alleged to have been committed on 28 July 2012. 

3.  The applicant was sentenced on the same day to a total of 2 years and 8 months’ imprisonment against which sentences he seeks leave to appeal.  The judge imposed a sentence of 2 years’ imprisonment in respect of each charge and ordered that 4 months of the sentence imposed in respect of the 2nd charge be served consecutively to the sentence of imprisonment imposed in respect of Charge 1.  Then he ordered that 4 months of the sentence of imprisonment imposed in respect of Charge 3 be served consecutively to the other two sentences of imprisonment.

4.  All three burglaries took place in serviced apartments.  Two of the burglaries, Charges 1 and 3, were of the same room at different times in premises at 24 Elgin Street, Central, whilst the third burglary, Charge 2, was committed at premises at Wing Lok Street in Sheung Wan.  Both sets of premises were managed by the applicant’s former employer, City Loft Serviced Studios.

5.  The approximate total value of the cash and other property stolen was about $10,000. The applicant had been employed in and between January and July 2010 as a maintenance worker by City Loft and had been entrusted in that capacity with keys to the serviced apartments.  A review of CCTV footage revealed the applicant on the staircase of the two buildings at the material times that the second and third burglaries had been committed.

6.  On 31 July 2012 the applicant was arrested at his residence.  A search of his residence revealed the presence of some of the property stolen from the victim of the first burglary.  Also keys were discovered which it was found could be used to open some of the rooms in the serviced apartments.

7.  In interviews under caution the applicant admitted that he had used a phone card to gain entry to the serviced apartments and stolen properties from them.  He claimed that the keys found at his home were old keys which he had forgotten to dispose of.  However, when his employment terminated when he was dismissed in July 2010, he had signed an agreement to confirm that he had returned all original and duplicate keys to his employer, City Loft.

8.  Judge Browne stated that he took the usual starting point for a case of domestic burglary of 3 years’ imprisonment.  He identified two aggravating features in the commission of the offences:

(i) breach of trust reposed in the applicant by his former employer; and

(ii) the embarrassment caused to his former employer and the suspicion brought upon its existing employees.

9.  The judge stated that he took into account the applicant’s timely pleas of guilty and the fact that this was the applicant’s first conviction for offences involving dishonesty.  From the starting point of 3 years’ imprisonment for each of the three charges the judge discounted the sentence by one-third.

10.  Having considered the issue of totality, the judge ordered an additional 8 months, 4 months for each of Charges 2 and 3, to run consecutively to the 2 years’ imprisonment imposed in respect of Charge 1, giving the total sentence of 2 years and 8 months’ imprisonment.

11.  The applicant’s grounds of appeal can be summarised in the following way.  The starting point of 3 years’ imprisonment taken by the judge was excessive given that 1½ years’ imprisonment was the normal sentence for burglary of domestic premises.  The applicant said that he had learnt that from a fellow inmate who is in custody serving a sentence for burglary of domestic premises.  His fellow prisoner, so he said in his written submissions, had been sentenced to 30 months’ imprisonment on eight charges of domestic burglary.

12.  During the hearing today he confirmed that this fellow prisoner was Amjed Ali. Secondly, the applicant said that the discount afforded to him did not take proper regard of the remorse that he had demonstrated by co-operating fully with the authorities and the guilty pleas that he had tendered at the first available opportunity.  Thirdly, today orally he developed a matter that he had touched on in his written grounds, namely, humanitarian considerations.  He said that he had a wife and child in the Philippines for whom he was responsible. 

13.  He also informed the court that he had a drug problem which is what had brought about his commission of these offences.  He expressed concern that he might go back to drug abuse when he was released.  Apparently, as yet he has not brought this matter to the attention of the authorities, that is, the prison authorities.  I note that his criminal record contains convictions for possession of both poisons and dangerous drugs.

14.  Turning then to a consideration of those submissions.  It is well established that the normal starting point for sentence for a case of burglary of domestic premises for a first offender of full age is 3 years’ imprisonment.  The judgment of the Court of Appeal in The Attorney General v Lui Kam Chi [1993] 1 HKC 215 is authority of longstanding for that proposition.

15.  The judgment of the Court of Appeal in HKSAR v Ma Ming [2013] 1 HKLRD 813, is authority for the proposition that the fact that the defendant freely confesses at an early stage to the offence and subsequently pleads guilty is to be subsumed within the one-third discount. 

16.  Given that the imposition of the correct sentence on any accused falls to be considered within the unique matrix of the facts of his case and his personal circumstances, sentencing in other cases is of limited assistance to this applicant. 

17.  Nevertheless, inquiries have produced the reasons for sentencing in the case of the co‑prisoner, namely Mr Amjed Ali.  He was dealt with by District Court Judge Kwok on 1 February 2013 in consolidated cases DCCC 966 and 1186 of 2012. 

18.  Mr Ali pleaded guilty not to eight counts of burglary but to two counts of burglary and to two counts of failing to surrender to custody without reasonable excuse.  For the four offences he was sentenced to a total of 30 months and 30 days’ imprisonment.  One of the burglaries was of domestic premises in respect of which the judge took a starting point of 3 years and 2 months’ imprisonment enhancing the usual 3 years’ starting point by 2 months to reflect the fact that there were multiple or more than one burglar.  The other burglary was of non-domestic premises for which the judge took a starting point of 2½ years’ imprisonment.

19.  In contending that the usual sentence for domestic burglary is 18 months the applicant has been wholly misinformed of this court’s longstanding approach.

20.  In the result, I am satisfied that neither the individual sentences nor the total sentence imposed upon the applicant are wrong in principle or are manifestly excessive.  Indeed, they are entirely apposite. 

21.  There is no merit in the grounds of appeal against sentence and the application for leave to appeal against sentence is dismissed.