HKSAR v. SONG JIANHUA

 CACC362/2006

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 362 OF 2006

(ON APPEAL FROM DCCC 586 OF 2006)

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J U D G M E N T

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McMahon J (giving the judgment of the Court) :

1. The appellant was convicted on his own plea before Deputy Judge Adriana Tse in the District Court of an offence of burglary.  He was sentenced to 32 months’ imprisonment.  The appellant now, having been granted leave, appeals his sentence.

2. The facts of the case were quite straightforward.  A security guard saw the appellant climbing scaffolding erected around a residential building in Sham Shui Po in the early hours of 16 May 2006.  The police were called and conducted a door to door search of the building, no doubt to the unavoidable inconvenience of the occupants.  The appellant was found in a flat on the 2^nd floor of the building.  He was hiding under the dining-room table after having gained entry to the premises by prising open the toilet window with a screwdriver.  Upon being cautioned by the police, the appellant said he had entered the premises to steal.

3. By his homemade grounds of appeal, the appellant complains that the sentence imposed upon him was manifestly excessive and that the judge wrongly took into account that the appellant had previously committed a burglary in the same building as the one involved in the present case.  He argues also that he should have received a lesser sentence, as he did not successfully steal anything.

4. In sentencing the appellant, the judge took a starting point of sentence of four years’ imprisonment.  She appreciated that the starting point of three years’ imprisonment would be appropriate for a first offender for the burglary of domestic premises, but noted :

“2.   There are aggravating factors in this case.  You entered the victim’s premises in the early hours of the morning, a time when the house was occupied and when anyone would clearly have expected it to be occupied.  That is an aggravating factor …  Further, the defendant is not a fresh offender; you burgled the same building in 2002.  You were arrested, convicted and sentenced to 2 years’ imprisonment but that has not deterred you.”

5. There were, no doubt, aggravating features present in this case.  The appellant has two previous robbery convictions, a previous conviction for burglary, as the judge noted, and a previous conviction for attempted theft.  All these offences were committed on occasions when the appellant had come unlawfully to Hong Kong from the mainland.  He has five previous illegal entry offences.

6. The appellant has, over the course of these offences, all committed during the past 10 years, treated Hong Kong, its citizens and its laws with contempt.  

7. We cannot see that the judge could have approached the prior criminal history of the appellant as anything other than an aggravating factor.  No doubt the judge referred specifically to the appellant’s earlier burglary of premises in the same location as the premises in the present case because that struck her as being a particularly brazen coincidence of events.  It matters little that the burglary occurred nearby in the same street rather than in the same building, as stated by the judge.

8. In our view, the fact that the burglary took place in the early hours of the morning, at a time when the occupants of the flat were highly likely to be home to the appellant’s knowledge was also an aggravating factor the judge was entitled to take into account : see HKSAR v. Tong Fuk Sing [1999] 3 HKC 332 at 335 to 336 and HKSAR v. Ng Wai Hing [2003] 2 HKLRD 338 at 342.  

9. As to the appellant’s final complaint, it matters not at all to considerations of sentence that due to the diligence of a security guard and the prompt action of the police, the appellant was in this case unable to steal anything prior to being apprehended. 

10. The starting point of sentence of four years’ imprisonment taken by the judge, while on the high side, cannot, given the appellant’s background and the circumstances of the offence, be criticised in principle, nor can the sentence finally imposed be said to be manifestly excessive and the appeal is dismissed.

11. We might add that the appellant referred us to another burglary case in the course of his submissions, that he had seen reported in a newspaper.  That case, so far as the appellant cited its facts to us, was of no assistance.  It is trite to say each case is necessarily decided on its own facts and the fact that a more lenient sentence may have been imposed in the circumstances of another case was not relevant to our considerations in the present case.