HKSAR v. KONG KWOK WING

CACC 349/2004

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 349 OF 2004

(ON APPEAL FROM DCCC 540 of 2004)

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REASONS   FOR   JUDGMENT

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Hon Lugar-Mawson J: (giving the judgment of the Court)

Introduction

1.  On 25 November 2004, we allowed Kong Kwok Wing’s (the Applicant) appeal against sentence and substituted overall sentences of 4 years & 8 months’ (56 months) imprisonment for his offences in place of the overall sentences of 5 years & 6 months’ (66 months) imprisonment imposed by the trial judge.  We now set out our reasons for our decision.

Background

2.  On 21 July 2004, in the District Court before H.H. Judge Barnes, the Applicant, pleaded guilty to four counts of theft, contrary to section 9 of the Theft Ordinance, Cap. 210 (the 1^st, 2^nd, 5^th & 7^th charges); one count of burglary, contrary to section 11(1)(b) and (4) of the Theft Ordinance, Cap. 210 (the 8th charge); and one count of possession of an apparatus for radio communication without a licence, contrary to section 8(1)(b) & section 20 of the Telecommunication Ordinance, Cap. 106 (the 9^th charge).  Other charges were not proceeded with and were ordered to lie on the court file.

3.  On the following day, 22 July 2004, the Applicant was sentenced to:

a)    2 years’ imprisonment on the 1^st charge;

b)    20 months’ imprisonment on the 2^nd charge, to be served consecutively to the sentence on the 1^st charge;

c)    16 months’ imprisonment on the 5^th charge, to be served consecutively to the sentences on the 1^st & 2^nd charges;

d)    20 months’ imprisonment on the 7^th charge, to be served concurrently with the sentences on the 1^st, 2^nd & 5^th charges;

e)    2 years’ imprisonment on the 8^th charge, to be served concurrently with the sentence on the 7th charge, but with 6 months of that sentence to be served consecutively to the sentences on the 1^st, 2^nd & 5^th charges; and

f)    12 months’ imprisonment on the 9^th charge, to be served concurrently with the sentences on all the other charges. 

His total sentence, therefore, was one of 5½ years’ (66 months’) imprisonment.

Facts

4.  At the time of the offences the Applicant was employed by King Fook Jewellery Group Ltd (King Fook).  He had started off as a salesman and then been promoted to acting sales supervisor.  Before working with King Fook he had run his own jewellery business, but that had failed.

5.  On 6 December 2001, at about 11.15 p.m., the alarm system installed in King Fook’s shop in the Miramar Shopping Centre in Tsim Sha Tsui was activated.  The shop manager was called out and returned to the shop.  He found that the rear door had been prised open and that the tape installed in the shop’s CCTV system had been removed.  He also found that $1.29 million’s (the particulars of offence for the 1^st charge incorrectly give the value at $1.20 million) worth of watches, jewellery and gold ornaments had been stolen.  These facts give rise to the 1^st charge.

6.  Over two years later, at about 6:30 a.m. on 10 March 2004, the police attended King Fook’s Central shop after the shop’s alarm system had been activated.  They found signs that the rear door had been drilled through and prised open.  Inside, they found the Applicant sitting in the pantry.  There was a black bag beside him; in it were a large number of gold ornaments.  There was also a black walkie-talkie set on the floor beside him.   The police also found a hammer, an electric drill, three screwdrivers, a pair of labourer’s gloves, a saw, a cutter and a paint scrapper on the shop’s showroom floor.  They also found that the shop’s alarm system had been tampered with.  The shop manager was called to the shop; he confirmed that the Applicant was not employed at that shop.

7.  The Applicant was arrested.  After caution, he admitted burgling the shop because he had no money to pay his rent and his son’s school fees.   He told the police that he had bought the tools two months earlier.  He had used the electric drill, the screwdrivers and the saw to break open the shop’s rear door.  Once inside, he had attempted to disconnect the alarm system, but had been unsuccessful in doing so and had activated the alarm.  He went on to say that he had bought the walkie-talkie set for the purpose of intercepting police radio communications.  He admitted that he had no licence for the set.  These facts gave rise to the 8^th & 9^th charges.

8.  The Applicant also admitted to the police that he had committed the theft charged in the 1^st charge.  He had been employed at King Fook’s Miramar Shopping Centre shop at the time.  When the shop closed for business, unbeknown to his fellow shop assistants, he had hidden in shop.  When all was quite, he had had put on a pair of gloves and stolen the property particularised in the charge.  Before leaving the shop, he had removed the videotapes installed in the shop’s CCTV system to avoid being captured on the recording.  He admitted pawning the stolen items at different pawnbrokers’ shops in Hong Kong and Kowloon to obtain cash to finance his family’s needs.

9.  The police found a number of pawn tickets relating to watches and rings in the Applicant’s possession.  He admitted that he had stolen the items they related to from King Fook by persuading his colleagues to let him take them away on the pretext that he either needed to do further work on them, or show them to customers.  By these means, he had stolen jewellery worth $185,000, in October 2003, jewellery worth $70,000 in January 2004 and jewellery worth $85,000 in March 2004.  This admission gave rise to the 2nd, 5^th & 7^th charges.

Mitigation

10.  The Judge was told that the Applicant is 37 and, prior to his conviction, was of clear record.  He is married with two young children.  In mitigation it was claimed that he had committed the offences because he was in need of money.  His son attended an expensive private school and his wife was of an extravagant nature.  He was said to be remorseful.  The Judge was also told that he had left some of the stolen property in the shop in the December 2001 theft when he fled from it after the alarm had sounded and a security guard approached the shop.  It was claimed that the Applicant knew that he would eventually be found out, and that is why he had kept the pawn tickets and not attempted to flee from the Central shop after the alarm sounded in the March 2004 burglary.

The Judge’s approach to sentence

11.  The Judge’s approach to sentence was to divide the Applicant’s offences into three groups; the theft in December 2001, charged in the 1^st charge; the three thefts from October 2003 to March 2004, charged in the 2^nd, 5^th & 7^th charges; and the burglary, and the possession of an unlicensed radio communication apparatus offence, charged in the 8^th & 9^th charges.

12.  On the 1^st charge of theft, the Judge took a starting point sentence of 3½ years’ imprisonment.  She then gave the Applicant a one-third discount to reflect his guilty plea and then gave him a further discount of four months, reducing his sentence to 2 years’ imprisonment, because she was of the view that had it not been for his admission there would have been insufficient evidence to convict him on this charge.

13.  For the three thefts charged in the 2^nd, 5^th & 7^th charges, the Judge considered that the Applicant had breached his employer’s trust.  She took a starting point sentence of 2½ years’ imprisonment for the 2^nd charge, 2 years’ imprisonment for the 5^th charge and 2½ years’ Imprisonment for the 7^th charge.  She then gave him a one-third discount to reflect his guilty pleas, reducing the starting points for sentence to 20, 16 and 20 months’ imprisonment respectively.  She then expressed the view that although the three offences spanned a period of around five months, a global sentence of 3 years’ imprisonment for all three would properly reflect his criminality.  She did this by ordering that he serve his sentence of 20 months’ imprisonment on the 2^nd charge consecutively to his sentence on the first charge; his sentence of 16 months’ imprisonment on the 5^th charge, consecutively to his sentences on the 1^st & 2^nd charges and; his sentence of 20 months’ imprisonment on the 7^th charge concurrently with his sentences on the 1^st, 2^nd & 5^th charges.

14.  For the burglary charged in the 8^th charge, the Judge took the view that, although the Applicant had burgled commercial and not residential premises, he had, nevertheless, committed a sophisticated and well-planned burglary in which he had used a number of tools as well as the walkie-talkie set to intercept police communications.  She also noted that the value of the stolen property, although it was recovered in its entirety, was in the region of $300,000.  She determined that a starting point sentence of 3 years’ imprisonment was appropriate for this offence and then gave the Applicant a one-third discount to reflect his guilty pleas, reducing the sentence to one of 2 years’ imprisonment.

15.  For the possession of unlicensed radio communication apparatus in the 9^th charge, for which the Judge noted that the Telecommunication Ordinance. Cap. 106 provides for a maximum penalty for this offence of a fine of $100,000 and 5 years’ imprisonment after trial on indictment, the Judge took the view that a starting point for sentence of 18 months’ imprisonment was appropriate.  After giving the Applicant a one-third discount to reflect his guilty plea, she reduced his sentence for this offence to one of 12 months’ imprisonment.  She then determined that the 8^th & 9^th charges arose out of the same course of criminal conduct and ordered that the two sentences be served concurrently.

16.  The Judge then addressed the issue of totality of sentence by making the orders as to concurrent and consecutive sentences that we referred to earlier, resulting in the Applicant’s overall sentence for his six offences being one of 5½ years’ (66 months’) imprisonment.

Conclusion

17.  When we considered the question of the totality of the Applicant’s sentence, we were of the view that the overall sentence he received of 5 years & 6 months’ imprisonment was manifestly excessive.  It must be appreciated that by choosing to prosecute the Applicant in the District Court and not the Court of First Instance, the prosecution was accepting that even had the Applicant taken all six charges to trial, been convicted and had no mitigation, his criminality did not justify him being sentenced to terms of imprisonment in excess of the District Court’s sentencing limit of 7 years’ imprisonment.  So far as this is concerned we make no criticism of the prosecution’s decision.

18.  As matters stand, the Applicant was sentenced on the basis that the overall starting point for his six offences was 8 years & 3 months’ (99 months) imprisonment.  However, although the Judge was entitled to take a higher overall starting point than 7 years for all six offences, we do not think in this case that it was appropriate to do so.  In our opinion, a starting point of 7 years’ imprisonment would meet the criminality disclosed by these offences, with a reduction by a third to reflect the Applicant’s pleas of guilty.  Mr. Kumar Ramanathan expressed, on the Applicant’s behalf, his agreement to that course.

19.  We therefore granted the Applicant leave to appeal and, treating the hearing as the hearing of the appeal, we allowed the appeal and pursuant to our powers under section 83I(3) of the Criminal Procedure Ordinance ordered that he:

a)      serve his sentences of 2 years’ and 12 months’ imprisonment on the 8^th & 9^th charges, respectively, concurrently with each other, but consecutively to his 2-year sentence on the 1^st charge, which will remain unaltered; and

b)     serve his sentences of 20, 16 and 20 months’ imprisonment on the 2^nd, 5^th & 7^th charges, respectively, concurrently with each other, but consecutively, to the extent of 8 months only, to the cumulative sentence of 4 years’ imprisonment to be served on the 1^st, 8^th & 9^th charges.

This means that the Applicant’s total sentence is now reduced to 4 years & 8 months’ (56 months) imprisonment.