HKSAR v. YEUNG KWAN HUNG

CACC 217/2010

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 217 OF 2010

(On Appeal From District Court Criminal Case No. 1379 of 2009)

________________________

BETWEEN

________________________

________________________

J U D G M E N T

________________________

Hon Cheung JA (giving judgment of the Court) :

Leave to appeal against sentence

1.  The applicant pleaded guilty before H H Judge Toh to the following seven charges :

(1) five charges of burglary, contrary to section 11(1)(b) and (4) of the Theft Ordinance (Cap. 210) (Charges 1, 2, 3, 8 and 9);

(2) one charge of loitering with intent, contrary to section 160(1) of the Crimes Ordinance (Cap. 200) (Charge 10); and

(3) one charge of possession of Part I poison, contrary to section 23(1), 33(1) and 34 of the Pharmacy and Poisons Ordinance (Cap. 138) (Charge 11).

2.  The applicant was sentenced to 48 months’ imprisonment.  He now seeks leave to appeal against the sentence in respect of the 10^th and 11^th charges. 

Facts

3.  On 25 September 2009 at 9 pm the applicant was seen by a car owner pulling the handles of two vehicles which were parked in meter parking spaces in Tsuen Wan.  The car owner reported the matter to the Police.  Later, the applicant was seen by police officers acting in a furtive manner in the vicinity and they arrested him.  Upon caution the applicant admitted that he had tried to gain access to the parked cars to see if there was anything to steal.  This formed the subject matter of the 10^th charge.  The police found a bag containing ten tablets of zopiclone on the defendant.  He admitted that he bought the tablets from a man in the street and the tablets were to help him to sleep.  This formed the subject matter of the 11^th charge. 

4.  The applicant also admitted that he had committed a series of burglaries between July and September 2009.  He broke into the tuck shop or canteen of schools and stole from the cash registers there.  This formed the subject matter of the five burglary charges. 

5.  In respect of two of the burglary charges namely, Charges 1 and 2, the applicant’s face was also captured on CCTV.  In respect of the 8^th charge, he was identified by a security guard who had seen him holding a crowbar in the school where he had entered by forcing the padlock on the gate.  Cash of about $23,000 were stolen from the schools and there was damage done to a school of about $1,200. 

The sentence

6.  The Judge adopted 30 months’ imprisonment as the starting point for each of the burglary offences and reduced them by one third because of the plea.  She used 18 months’ imprisonment as the starting point for the loitering offence and reduced it to 12 months for the plea.  In respect of possession of Part I poison charge she adopted a starting point of six months’ imprisonment, reduced it by one third to four months.  

7.  In respect of charges 2 and 3 the sentences of 20 months’ imprisonment are to be served concurrently but 10 months of which are consecutive to the 1^st charge of 20 months’ imprisonment.  Likewise, in respect of charges 8 and 9 the 20 months’ imprisonment are to be served concurrently, but 10 of which are to be served consecutively to the 20 months’ imprisonment of charge 1 and 10 months’ imprisonment of charges 2 and 3, making a total of 40 months’ imprisonment. 

8.  In respect of the sentence of 12 months’ imprisonment for the loitering charge, the Judge ordered six months of which to be served consecutive to the 40 months’ imprisonment for the burglary charges and in respect of the possession of Part I poison charge she ordered two months of the sentence of four months’ imprisonment to be served consecutively to the other sentences, making a total of 48 months’ imprisonment.

Burglary

9.  Mr. Adonis Cheung, counsel for the applicant, accepted the correctness of the sentences for the burglary charges in the light of the two decisions of this Court.  In Secretary for Justice v. Chan Tsz Lung CAAR 4 of 1998, this Court (Power Ag CJHC, Mayo and Stuart-Moore JJA) on a review of sentence imposed on an applicant who had pleaded guilty to 15 counts of non-domestic burglary, held that the appropriate starting point should be five years’ imprisonment.  In HKSAR v. Fan Kit Hung CACC 62 of 2009 the applicant pleaded guilty to 13 charges of burglary of non-domestic premises, this Court (Hartmann JA and McMahon J) held that a starting point of 6 years’ imprisonment should be adopted.  In the present case the sentence of 40 months’ imprisonment for the five burglary charges of non domestic premises reflects a starting point of five years’ imprisonment. 

Sentence of Loitering

10.  The only issue taken on this appeal is in respect of the sentences for loitering and possession of Part I poison charges. 

11.  In respect of the loitering charge, counsel (not Mr. Cheung and Ms Ng who only appear in this application) had not drawn to the attention of the Judge that the maximum sentence is a fine of $10,000 and six months’ imprisonment.  The sentence of 18 months’ imprisonment imposed in the present case clearly cannot stand.  This is accepted by the respondent.  Bearing in mind the applicant’s admission to the Police at the time of his arrest, we consider that a 3-month starting point is appropriate for the charge.  With the one-third discount for his plea the sentence should be 2 months’ imprisonment.

Possession of Part I poison

12.  In respect of the possession of Part I poison charge, in HKSAR v. Chan Tak Shing HCMA 657 of 2002 the defendant pleaded guilty to possession of four tablets of zopiclone.  The Magistrate used a starting point of 6 months’ imprisonment.  On appeal a starting point of 3 months’ imprisonment was substituted. 

13.  In HKSAR v. Li Hok Leung HCMA 1001 of 2004 the appellant pleaded guilty to, among other things, possession of 30 tablets of zopiclone.  A starting point of 3 weeks’ imprisonment was adopted.  However, it should be noted that the appellant was also charged with a more serious offence of trafficking in 17.71 grammes of ketamine. 

14.  In Chan Tak Shing, evidence was adduced to show that that zopiclone has a very low risk of dependence and is basically mainly used for the treatment of insomnia.  In our view, having regard to the circumstances of this case, namely, the applicant has a confirmed psychiatric problem and the zopiclone might indeed be needed by him to deal with his insomnia problem, the appropriate starting point should be three months’ imprisonment.  This is to be reduced by one third to arrive at a sentence of 2 months’ imprisonment.

Overall sentence

15.  Ms Memi Ng, SPP urged upon us that although the sentence for the loitering charge was incorrect the overall sentence of 48 months imposed by the Judge is appropriate having considered the previous criminal record of the applicant.

16.  The applicant is now 39 years of age, he has an appalling criminal record including six convictions of possession of dangerous drugs, nine convictions of burglary and one conviction of attempted burglary convictions.  As recorded by the Judge the applicant has a long serious drug problem with psychiatric complications. 

17.  We have considered Ms Ng’s submission.  However, as the appeal is only concerned with the 10^th and 11^th charges, this Court should only deal with these two charges.  The sentence for loitering charge of 2 months’ imprisonment is to be served consecutively to the sentence of 40 months’ imprisonment for the burglary offences, making a total of 42 months’ imprisonment. 

18.  Due to the exceptional circumstances of the case that we have mentioned, we will order the sentence of 2 months’ imprisonment to be served concurrently to the sentence of 42 months’ imprisonment. 

Conclusion

19.  Accordingly, we will allow the application, treat the application as the appeal proper and reduce the sentence as indicated above.