HKSAR v. SHAHID IMRAN YOUNAS

CACC 229/2015

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 229 OF 2015

(ON APPEAL FROM DCCC NO. 246 OF 2015)

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J U D G M E N T

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1.  On 16 June 2015, the applicant appeared before HH Judge Woodcock and pleaded not guilty to one charge of burglary, contrary to section 11(1)(b) and (4) of the Theft Ordinance, Cap 210. The particulars of the charge were that the applicant entered private domestic premises situated at an address in Apliu Street, Sham Shui Po, Kowloon (“the flat”) on 10 December 2014 as a trespasser, and stole therein. The stolen items included some foreign currency, jewellery, watches, coins and other small personal items. Following a trial, in which identity was disputed, the applicant was convicted of the charge and, on 23 June 2015, sentenced to 3 years and 3 months’ imprisonment. He now seeks leave to appeal against sentence.

The facts

2.  Mr Cheung (PW1) and Madam Poon (PW2) were husband and wife.  They lived in the flat concerned with their children.  On 7 December 2014, a fire had broken out in their kitchen, which had burned down their back door and caused smoke damage throughout the flat.  Since the water and electricity had been turned off, they moved out of the premises on a temporary basis.

3.  On 10 December 2014, PW1 and PW2 returned to the flat at about 10 am with a friend, Mr Tse (PW3), an electrician and plumber who was going to help them fix up the flat.  They entered through the front gate and door using their door keys.  After entering the premises, they saw the applicant emerging from the master bedroom.  Not realising who PW1, PW2 and PW3 were, and on being challenged as to why he was there, the applicant offered to share the stolen goods with them.

4.  PW2 then proceeded to call the police on her mobile telephone; whereupon the applicant advanced on her to try and prevent her from making the call.  PW1 and PW3 immediately intervened to protect her and there was a struggle between the three men inside the flat.  The applicant managed to extricate himself and attempted to flee but slipped by the front door and was eventually pinned face down on the ground.  There the applicant remained until the police arrived.

5.  The police arrived to find the applicant in this same position on the ground and arrested him.  His bag was searched and personal items belonging to PW1 and PW2 (worth a total of HK$14,870) taken from various places in their home were found in it and strewn on the floor.

6.  PW3 sustained an injury to his face during the struggle, although he was not aware of it until the police pointed it out; while some of the applicant’s blood was found smeared on the door of the premises.

Mitigation

7.  The applicant was 33 years old at the time of his sentence.  He had 7 previous appearances before the courts involving a total of 10 convictions, of which three were for theft, one for criminal damage, one for assaulting a police officer and three for possession of dangerous drugs.

8.  The applicant was single, and was born in Pakistan.  He had come to Hong Kong when he was 12 years old.  He was unemployed at the time of the offence.  It was submitted on his behalf that there were no aggravating features in the case.

Reasons for sentence

9.  The judge found that a struggle had ensued between the prosecution witnesses and the applicant when he was confronted, which was obviously quite physical.  She considered this to be an aggravating feature of the offence.  She also found that the premises had been ransacked, resulting in “a huge mess, adding to the woes of the homeowners”.[1]

10.  In passing sentence, the judge adopted a starting point in respect of the burglary of domestic premises of 3 years’ imprisonment, which she increased by 3 months to reflect the aggravating factor just described.  Since the applicant had been convicted after trial and there was no mitigating factor in his favour, he was accordingly sentenced to 3 years and 3 months’ imprisonment.

Grounds of appeal

11.  In his initial ground of appeal attached to his Notice of application for leave to appeal (Form XI), the applicant did not advance any grounds for the appeal against sentence other than to say that it was “to(o) much”.  He has before me today said that he himself was injured in the struggle with PW1 and PW3, one of whom carried a hammer, for which he has sought medical treatment whilst in prison.  He has also told me that his father has recently passed away in Pakistan, and that he would like to return there.

The respondent’s position

12.  Mr Siu, on behalf of the respondent, submits that for a burglary of domestic premises, it is well-settled that 3 years’ imprisonment is the appropriate starting point for sentence, even where a defendant has a clear record, which the applicant did not: see HKSAR v Lau Ping [2004] 3 HKLRD 565.  Moreover, domestic burglary is considered as being more serious if “force is used or threatened”: see R v Brewster and Others [1998] 1 Cr App R (S) 181, per Lord Bingham CJ at 186.  The respondent submits that the judge was right to regard the use of force by the applicant as an aggravating factor in the present case.

Consideration

13.  I cannot see any reasonably arguable ground of appeal in this case.  The judge’s starting point for sentence after trial in the case of a burglary of private domestic premises is in conformity with established sentencing authority applicable in Hong Kong.  The extra 3 months’ imprisonment would appear to be justified on the basis that the applicant was prepared to resort to force to prevent Madam Poon from calling the police and to effect his escape when confronted by the home owners.

14.  Nothing that the applicant has told me today can amount to any mitigation of the offence.

Conclusion

15.  The application for leave to appeal against sentence is accordingly refused.  The applicant is duly advised of his right to renew his application for leave to appeal against sentence to the Court of Appeal, but is also warned of the consequences of so doing, which may include a direction for any loss of time spent in custody pending his appeal, if the Court of Appeal were to come to the view that there was no justification for the renewal of the application.

[1] Reasons for Sentence, Appeal Bundle p 13D