HKSAR v. MONKHOR GANTUGS

CACC 178/2016

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 178 OF 2016

(ON APPEAL FROM DCCC NO. 39 OF 2016)

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J U D G M E N T

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1.  Following his pleas of guilty before HH Judge Casewell (“the judge”) in the District Court on 23 May 2016, the applicant was convicted of six charges of burglary[1], contrary to section 11(1)(b) and (4) of the Theft Ordinance, Cap 210. He was sentenced on the same day to individual sentences of 20 months’ imprisonment in respect of each charge but an overall term of 36 months’ imprisonment.

2.  On 16 June 2016, the applicant filed a Notice of application for leave to appeal (Form XI) and now seeks leave to appeal against his sentence.

The facts

3.  All of the offences followed a similar modus operandi, when the applicant entered the company concerned as a member of staff either entered or left the premises.  He then stole cash and/or property from those premises.  The offences spanned from March to September 2015 and the total value of the cash and property stolen was in the region of HK$35,000[2].  The dates, places and property stolen may be summarised as follows:-

(a) Charge 1: One MacBook valued at HK$10,000 stolen from Room 1006, 10/F, Great Eagle Centre, No. 23 Harbour Road, Wanchai on 2 March 2015;

(b) Charge 3: One wallet, HK$920 in cash, a Hong Kong Identity Card, an Octopus Card, eight bank cards, two red packets, one security device, one amulet, some cards and cash coupons, valued in total at HK$1,325 stolen from 24/F, One Exchange Square, No. 8 Connaught Place, Central on 16 April 2015;

(c) Charge 4: One wallet, HK$2,010 in cash, a Hong Kong Identity Card, eight bank cards and some other cards valued in total at HK$2,010 stolen from 32/F, The Gateway Tower 2, No. 25 Canton Road, Tsim Sha Tsui, Kowloon on 29 April 2015.  The wallet was subsequently found on the following day in a photocopying room at the company premises together with all of the cards but minus HK$2,000 in cash;

(d) Charge 5: One wallet, HK$3,000 in cash, a Hong Kong Identity Card, a Home Visit Permit and two bank cards, valued in total at HK$3,500 stolen from Room 1911, 19/F, Concordia Plaza, No. 1 Science Museum Road, Tsim Sha Tsui, Kowloon on 15 September 2015;

(e) Charge 6: One MacBook valued at HK$10,000 stolen from 20/F, Dorset House, Taikoo Place, No. 979 King’s Road, Quarry Bay on 22 September 2015.  The stolen property was subsequently recovered from the applicant;

(f) Charge 7: One iPhone valued at HK$7,188 stolen from 27/F, Edinburgh Tower, No. 15 Queen’s Road Central, Central on 24 September 2015.  The stolen property was subsequently recovered from the applicant.

4.  Upon investigation, the applicant was identified as the burglar in respect of the offence on 24 September 2015 and arrested by police at Lo Wu Control Point, New Territories.  Upon search, one MacBook and one iPhone were found in the applicant’s possession, which were subsequently confirmed to be stolen property belonging to the victims in Charges 6 and 7.  In a subsequent video-recorded interview, the applicant admitted under caution that he had stolen from the subject premises in Charges 4 and Charge 6, whilst CCTV footage captured the applicant waiting at the entrances of the premises in Charges 1, 3, 4, 5 and 6 and walking in to the respective premises when someone opened the entrance door. The applicant was also positively identified by staff of the subject premises in Charge 5 at a formal ID parade.

Mitigation

5.  The applicant was 32 years old at the time of his sentence.  He was a Mongolian national and had received education up to second year at university in Mongolia.  He was employed as a mobile telephone salesman in Mongolia earning the equivalent of a monthly salary of HK$5,000.  In 2012, he and his wife were divorced, with his 5 year-old daughter being taken care of by his former wife.  The applicant said he would pay about HK$2,000 a month to support his daughter and former wife.

6.  Counsel for the applicant at the sentencing hearing submitted that the normal starting point for “non-domestic” burglary would be 2 years and 6 months’ imprisonment.  However, he argued that a lower starting point could be adopted in the present case and referred to HKSAR v Cheung To Ming[3]for the proposition that the applicant should be viewed as a “sneak thief” or opportunistic burglar, particularly since the offences were committed without the use of any violence on, or threat of force to, the victims and without breaking into the premises concerned.  It was also submitted that the sentences for each charge should be served concurrently.

Reasons for sentence

7.  The judge held that all of the burglaries in the present case were non-domestic.  He noted that a burglary of non-domestic premises would attract a starting point of 2 years and 6 months’ imprisonment before consideration of aggravating and mitigating factors.  The judge considered that the applicant was entitled to a one-third discount for his pleas of guilty.

8.  In dealing with the submissions made by defence counsel, the judge distinguished Cheung To Ming on its facts, since that case involved a burglary of a reserve centre in the Mai Po marshes, which had been earlier broken into, where the appellant stole two packets of noodles because he was hungry.  The present offences, however, involved the burglaries of occupied commercial premises during office hours or lunch time.  The judge said, at paragraph 17 of his Reasons for Sentence:

“…the gravamen of this offence is in the fact the defendant is inside the premises, which are occupied office premises, so the risk of him being detected is high; the risk of him being seen and confronted is high.”

9.  The judge then turned to consider the totality of the sentence.  Bearing in mind that the 6 charges demonstrated persistence over a period of some 6 months, he considered the appropriate starting point to be 54 months’ imprisonment, which he reduced to 36 months’ imprisonment for the applicant’s pleas of guilty.  To achieve the overall total sentence of 36 months’ imprisonment, the individual sentences of 20 months’ imprisonment on Charges 1, 3 and 4 were ordered to run concurrently with each other, while the sentences on Charges 5, 6 and 7 were also ordered to run concurrently with each other, but with 16 months of the concurrent term being ordered to run consecutively to the sentences on Charges 1, 3 and 4.

Grounds of appeal

10.  In his initial grounds of appeal attached to his Form XI Notice, the applicant complains that the sentence was too severe and “difficult to serve”. He asserted that the sentences of other inmates in respect of similar offences were shorter, even though the damage they had caused was “higher”.

11.  In a further letter, dated 2 September 2016, the applicant explained the hardship which his family has been suffering in his absence.  He has today provided me with a further letter amplifying the problems confronting his family members in Mongolia and expressing remorse for committing these offences.

Respondent’s submissions

12.  On behalf of the respondent, Ms Lily Yip submitted that the starting point adopted by the judge was in line with the guidelines for cases of this nature and that the judge was right to reject defence counsel’s submission that the burglaries committed by the applicant were opportunistic, given that the applicant had waited outside the burgled premises in order to gain entry; had targeted items which were of high value; and had committed repeated offences over a period of 6 months, which suggested a habitual rather than opportunistic burglar.  She further submitted that the commission of repeated offences was an aggravating feature, yet the judge had not enhanced the starting points.

13.  As for totality, Ms Yip submitted that since each offence was separate and distinct in terms of time and place, and that no less than 6 offences had been committed repeatedly over a period of about 6 months, there was no justification for wholly concurrent sentences.  She drew my attention to the following appellate authorities, where sentences were considered in cases involving multiple burglaries:

(a) In HKSAR v Hui Wing Chiu[4], the defendant was convicted after trial of 2 counts of burglary, in which he had gained entry into commercial offices and stolen property worth HK$13,424.  The Court of Appeal upheld the sentence of 45 months’ imprisonment after trial;

(b) In HKSAR v Xie Guohong[5], the defendant was convicted on his own plea to 4 counts of non-domestic burglary committed over a 2-month period.  The total value of stolen property was HK$470,000.  A starting point of 72 months’ imprisonment was held to be appropriate by the Court of Appeal;

(c) In HKSAR v Hui Yee Lung[6], the defendant was convicted on his own plea to 3 counts of non-domestic burglary and 1 count of going equipped for stealing.  The total value of stolen property was HK$48,000.  A starting point of 60 months’ imprisonment was held to be appropriate by the Court.

By reference to these authorities, it was submitted that a total sentence of 36 months’ imprisonment after plea in respect of 6 charges of non-domestic burglary could not be said to be manifestly excessive.

Discussion

14.  Clearly, these were repeated offences which took place over the course of 6 months.  For that reason, and given that they involved different victims in different premises on different dates, it was entirely correct for the judge to adopt a higher overall starting point than he might have adopted for a single offence, and to achieve the resulting sentence by way of partly consecutive and partly concurrent sentences.  The only real question is whether the starting point of 54 months’ imprisonment, reduced for the pleas of guilty to 36 months’ imprisonment is manifestly excessive or not.

15.  The property stolen in these six offences was not insignificant and would have been extremely inconvenient for the losers. There must be a significant deterrent component in sentence to discourage people like the applicant from brazenly entering private company premises and preying on members of staff who are going about their business in what they should expect to be the security of their workplaces.

16.  The decision in HKSAR v Hui Wing Chiu (supra) is of some assistance in gauging the correctness of the level of sentence in the present case.  In that case, as in this, the applicant (who was likewise of clear record) had followed a member of staff into the company premises concerned, where he had stolen, or attempted to steal, some printer cartridges.  The total value of the property actually stolen was HK$13,424. The two offences of burglary were committed within a 3-week period.  The Court of Appeal considered the trial judge’s starting point of 45 months’ imprisonment to be appropriate.

17.  In the present case, there were 6 separate burglaries spanning a period of 6 months, involving property (all of it personal) worth some HK$35,000.  The starting point was 9 months’ higher than that in HKSAR v Hui Wing Chiu.  Although decisions on particular sentences in other cases, however similar, are not binding on the Court of Appeal, clearly the overall criminality concerned in the present application was rather more serious than that in HKSAR v Hui Wing Chiu, and would have justified a commensurately higher sentence after trial.

18.  I should also make clear that the applicant’s personal circumstances and those of his family provide no basis for challenging an otherwise proper sentence.

Conclusion

19.  I can see no reasonably arguable grounds of appeal against sentence and the application for leave to appeal against sentence 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.

Postscript

20.  The applicant should consider himself fortunate that the Summary of Facts did not disclose that he had arrived in Hong Kong a matter of hours before the first offence was committed.  Nor did the judge make any enquiries of the parties as to what the applicant was doing in Hong Kong or when he had arrived in the territory.  All the Summary of Facts said on the issue, somewhat obviously and superfluously, was:

“32. Movement records show that (the defendant) was in Hong Kong at all material times.”

If it had been found that the applicant had evidently come to Hong Kong to commit serious crime, it would have been an aggravating factor for which he would have received an enhanced sentence.  As it is, he was fortunate that the prosecution did not bring this matter to the attention of the court.