HKSAR v. LUI CHO YIU

CACC 81/2004

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 81 OF 2004

(ON APPEAL FROM DCCC 1126 OF 2003)

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J U D G M E N T

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Stuart-Moore, VP (giving the judgment of the Court):

Background

1. The applicant was convicted on two charges of burglary following a trial in the District Court before Deputy Judge E. Lin. He received a sentence amounting in total to five years' imprisonment against which he now seeks leave to appeal.

Ground of appeal

2. The sole ground of appeal advanced by Mr Wilson Chan, on the applicant's behalf, was that taking into account all the circumstances of the case, including the applicant's previous criminal record, the nature of the two burglaries and their proximity in time, together with the principle of totality, the sentence was manifestly excessive. We are indebted to him for the candour, realism and helpfulness of his advocacy.

3. Taking each of these factors in turn, the applicant is an experienced criminal. He was aged 59 at the time of conviction and has been before the courts on numerous occasions for theft. He has also been imprisoned for robbery. More significantly, he has been convicted on three previous occasions of burglary, he has a conviction for a burglary which was committed after the offences with which we are concerned and a previous conviction for attempted burglary. In respect of these convictions, he has received sentences of up to five years' imprisonment.

4. In this regard, the judge said:

"5. Prior to the present offence the defendant had been in court (on) 12 occasions. Most of the crimes involved crimes of dishonesty. In 1978, 1986 and 1998 he was convicted of burglary. The defendant therefore could not rely on his previous good character to pray lenience from this court. On the contrary, the defendant's previous record indicated that he was a 'repeat offender'. The Court of Appeal has repeatedly indicated that a repeat offender should be given a heavier sentence, not for the sake of punishing him again for the misconduct in the past, but for the sake of reflecting the seriousness of the offence as an offence committed by a person who had repeatedly committed similar offences in the past (which) rendered the offence more serious.

6. At the time of the offence the defendant was aged 57. He was a grown man. There was no ground for the court to exercise further discretion in his favour by reason of his immaturity before passing sentence. Having considered the background information contained in the antecedents statements provided by the prosecution and that contained in the defence mitigation, I did not find any valid mitigating factor to justify reduction of sentence." (Appeal bundle p. 19)

5. The judge cannot be criticised for these comments. Most of what the judge said was self-evidently correct. However, we shall have to return later to one mitigating factor which does not seem to have been considered in the court below.

6. So far as the nature of the offences was concerned, and their proximity in time, the judge said:

"1. In this case the defendant was charged with and convicted of two counts of burglary which took place in the evening between 1 and 2 September 2001 in relation to two adjoining business premises in To Kwa Wan Road. He was convicted of both counts after trial.

2. My findings showed that the defendant and people still at large broke into the unit at 31 To Kwa Wan Road, Hung Hom, via its rear entrance at the mezzanine floor by prising open the iron grille and the wooden door. Then the shop next door, a Renminbi exchange shop situated at 31C To Kwa Wan Road, was broken into via a hole drilled through the wall dividing the two units. Various break-in equipments were found in both units.

3. In the first shop cash $5,500 and other equipment had gone missing. In the second shop the safe was prised open: RMB$30,000, cash HK$25,000 and coins in various denominations totalling HK$15,000 were stolen. These two burglaries obviously involved some planning and equipment (was) used. A certain skill and knowledge about burglar alarm devices was necessary. In my view, this case was much more serious than an ordinary break-in which might simply entail an opportunistic crime with no sophisticated equipment and no planning.

4. Burglaries of non-domestic premises have been considered serious offences. The Court of Appeal has laid down very clear guidelines. A normal starting point should be a term of imprisonment of 2 1/2 years. This case was a tad more serious than the normal burglaries. I would adopt therefore a higher starting point of 3 years for each count." (Appeal bundle pp. 18-19)

7. In respect of totality, the judge said:

"7. The defendant was therefore sentenced to 3 years' imprisonment in respect of both counts. As there were two distinct offences, albeit committed together, after taking into consideration the totality principle, I ordered that 2 years of the 2nd count to run consecutive to the 1st.

8. In all the defendant was imprisoned for 5 years." (Appeal bundle p. 19)

8. It is plain from everything said by the judge that he was well aware the normal tariff for non-domestic burglary was two and a half years' imprisonment (see: R v Wong Man, CACC 372/1992 (unreported) and R v Lui Kam-chi [1993] 1 HKC 215).

9. Mr Liu Yuen-ming, on the respondent's behalf, invited us to consider a number of other sentencing decisions of this court when submitting that the overall term of five years' imprisonment was appropriate.

10. It is quite plain that the usual starting point of two and a half years' imprisonment for a burglary of commercial premises not only can but should be increased where such offences are carried out by those whose activities mark them out as professionals. Criminals in this category will usually be found to have targeted high value goods, having prepared and planned the offence in advance. In cases where the offender has a bad record for offences of the same type, this may provide an additional aggravating factor (see: HKSAR v Chan Pui-chi [1999] 2 HKLRD 830).

11. We come back to the fact that although separately charged, these two burglaries involved adjoining premises, sharing a party wall, and were broken into during the night of 1 September and the early hours of 2 September 2001. We are satisfied nonetheless that the sentence of five years, taking the overall criminality, was appropriate. The applicant was one of a number of burglars who, as demonstrated by the manner in which they operated, including the use of drilling equipment and having someone with a skilled knowledge of the workings of the burglar alarm system, was obviously working with a professional team. They were intent upon opening a safe in a money exchange business. The only evidence which linked the applicant to the crime scene was his DNA which was found on a discarded soft-drink can. On these particular facts and with his record for this kind of offence the sentence, although high, was not manifestly excessive.

12. There is, however, one matter about which we have had some concern. At the time he was sentenced, the applicant had recently completed a twenty-month sentence for an offence of burglary committed in December 2001. We have now been supplied with a chronology of events which shows that if the DNA evidence had been processed more swiftly, the applicant could have been dealt with at a stage when he was still serving the twenty-month sentence. In such circumstances, we consider it to be unlikely that a combined total of six years and eight months would have been imposed for the September and December offences. In these circumstances, we propose to reduce the sentence the applicant is serving by eight months.

Conclusion

13. We shall, therefore, grant leave to appeal. Treating the hearing as the appeal, we shall set aside the sentence on charge 2 (the burglary of the money exchange premises) imposed by the judge. In its place, we substitute a sentence of four years and four months' imprisonment. This is higher than the sentence imposed by the judge on that charge, but on the facts of these two incidents we consider this to be a more appropriate approach than that adopted by the judge. On charge 1, the sentence of three years imposed by the judge is upheld. However, we shall order these sentences to be served concurrently, making an effective reduction of eight months in the five-year term presently being served by the applicant. To this extent, his appeal is allowed.