HKSAR v. SUEN CHI WAI

CACC 90/2015

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 90 OF 2015

(ON APPEAL FROM DCCC 58/2015)

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REASONS FOR JUDGMENT

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Hon D Pang J (giving the reasons for judgment of the court):

1. On 3 March 2015, in the District Court, the appellant pleaded guilty to one charge of burglary before His Honour Judge D Yau and was sentenced to 26 months’ imprisonment. Acting in person, the appellant applied for and was granted leave by a single judge of this Court (Lunn VP) to appeal against his sentence (19 June 2105). Having heard his appeal, we allowed the appeal. These are our reasons.

THE FACTS

2. No 184 Fuk Wing Street was a five-storey residential building in Cheung Sha Wan.  Only one residential unit was located on each floor.  At the building’s main entrance on the ground level was a metal gate that led right to the stairs.  Those stairs were the only means of access to the upper units.  The building did not have the facility of a watchman.  Nor was it monitored by CCTV. 

3. At about 9 pm on 24 November 2014, a couple leaving their 3^rd floor unit came fortuitously across the appellant on the staircase.  A stranger, the appellant was picking up some bags and making his way to the upper floors.  Feeling suspicious, the couple kept watch from outside the street.  When nothing happened, they returned to the building, heard the sound of someone chiseling at something hard and when that stopped, saw the appellant walking down the stairs.  Thinking that he might be a renovation worker, the couple asked – successfully – for the appellant to dispose of some rubbish materials on the ground floor.  When they noticed how the appellant avoided the police on his way out from the rear lane where he had thrown the rubbish, however, the couple reported what they observed to the officers.  As a result, the police stopped the appellant and seized from the rear lane the appellant’s bags containing one copper strip and some tools.  It was also discovered that the copper strips[1] at the building’s 4^th and 5^th floor landings had both been cut off.  Under caution, the appellant admitted stealing those copper strips one of which he said he might have accidentally dropped.

4. The copper strips in question formed part of the wire connecting the building’s lightning rod to the ground.  Without them, the lightning rod would malfunction and increase the risk of fire and electrocution in the building.  The total cost of replacing those copper strips was $5,000.

BACKGROUND & MITIGATION

5. The appellant was aged 50, single and of no fixed abode.  With just a primary education, he had worked mainly as a delivery and kitchen worker.  Unemployed at the time of the offence, it was said that he perpetrated the theft to supplement his monthly CSSA of $700.  The appellant had 24 previous convictions three of which were for burglary (1981 and 2012) and ten were for theft (2003, 2005, 2006, 2007, 2011 and 2012).

THE ORIGINAL SENTENCE

6. The following are the crucial passages in the judge’s Reasons for Sentence (“R/S”):

“Sentencing Guidelines

12. The Court of Appeal had, in R v Wong Man Cr. App. 372 of 1992 and R v Chan Yui-man Cr App 36 of 1988, laid down guidelines for sentence in case of burglary of non-domestic and domestic premises where the defendant is a first offender of full age. The court set the respective starting points at 2 and a half years’ and 3 years’ imprisonment.

13. The burglary in our present case took place in the common area of a residential building. There is no evidence that the defendant had any intention of entering any of the residential units to steal. Neither Mr. Lee for the prosecution nor Mr. Tse for the defendant was able to find any authorities directly on the point of whether a theft that took place in the common area of a residential building would be regarded as burglary of a domestic or non-domestic premises.

14. Mr. Lee very fairly indicated that the position of the prosecution is that the burglary should attract a slightly lower starting point than that of a domestic premises, given that there was no evidence that there would be any risk of confrontation inside a victim’s home.

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Domestic or Non-domestic

16. I find first of all that the building was in fact a residential building and the burglary must therefore be regarded to have been committed on domestic premises.

17. Although the premises was a residential building, there is no evidence that the defendant had intended to enter any of the residential units to steal. The burglary was committed at around 9 pm, a time when residents would usually be home but not yet gone to bed. Although there is a risk of confrontation with the residents, and there was in fact confrontation, it did not take place inside the residential units. There is evidence to suggest that it had always been the defendant’s intention to steal the copper stripes and no evidence to suggest that he had intended to enter any of the residential units to steal. There was no risk of any of the occupants in the residential units being subjected to the horror of having their home invaded by a burglar.

18. I find that the guidelines to be applied is that for domestic premises, but with a downward adjustment to reflect the lessened seriousness.

Premeditation

19. The defendant committed the offence alone. Yet, from the tools that he had brought along with him it is clear that he had planned the commission of the offence.

20. I have seen the copper stripe that was recovered. It is about 1.6 meter in length, 4 cm in width and it is agreed that it weighs about 1.5 kg. The other missing copper stripe is of similar weight and dimension.

21. From the photographs, the part where the copper stripe was cut is some distance from the floor. To cut off this length of stripes required considerable effort on the part of the burglar.

22. Based on these facts, I find that the defendant must have a very clear idea and objective when he entered the building, which was to cut and steal the stripes. The burglary was clearly premeditated.

23. Based on the circumstances of the burglary, I find that an appropriate starting point is that of 2 years and 9 months’ imprisonment.

Aggravating Factors

24. At paragraph 11 of the summary of facts, the court is informed that the stolen copper stripes were the grounding wires connected to the lightning conductor erected on the top of the building, which is there to protect the building from the damaging effects of lightning strikes. Without the copper stripes, should lightning strike the conductor, the electric current would not be able to be routed harmlessly to ground and will substantially increase the risk of fire or electrocution.

25. The copper stripe that was cut off can be seen from the photographs (photo 8) as part of a continuous segment bolted to the side of another metallic structure. It is not just a small stripe found lying on the floor. The defendant must have known the purpose and significance of this stripe, and that this kind of copper stripes exists in all tall buildings that require a lightning conductor setup. The consequences of damaging this setup can be dire. I find this an aggravating factor.

26. Another aggravating factor is the defendant’s criminal record. This is the defendant’s fourth conviction on a count of burglary. His previous convictions for burglary was in May 2012. In addition to burglaries, the defendant has been convicted previously for 10 counts of theft over the years, the latest being also in May 2012.

27. For these two aggravating factors, I will increase the sentence by 6 months, taking it up to 39 months’ imprisonment.

Mitigating Factor

28. I find that the only mitigating factor is the defendant’s guilty plea.

29.  Granting the defendant the usual one-third discount for his guilty plea, he is sentenced to 2 years and 2 months’ imprisonment.” 

GROUND OF APPEAL

7. In a sheet attached to his Notice of application for leave to appeal (Form XI), the appellant complained that his sentence was too severe.  As he had not entered other people’s home, he considered that the starting point of his sentence should be much lower.  Before us, he supplemented his complaint with pleas on his personal circumstances.

LEAVE BY THE SINGLE JUDGE

8. Finding no problem with the enhancement of sentence due to the existence of aggravating factors[2], it was precisely on whether 2 years and 9 months was excessive as a starting point that the single judge had given leave for argument to be made before a full bench.

RESPONDENT’S POSITION

9. Here, as in the leave application, the respondent resisted the appellant’s appeal on the following premises:

(a)   No 184 Fuk Wing Street was a purely residential building.  Its occupants had a legitimate expectation not to have their homes invaded.  That expectation extended to the building’s common areas.

(b)  A burglary of the type in question put people at risk of having to confront an intruder at their residences.  It made no difference whether the confrontation took place inside a particular unit or in the building’s common areas.

(c)   The chances of such a confrontation were in fact higher in the common areas as the common areas were traversed by different occupants.

(d)  For the reason that nobody’s home was actually broken into, the judge had already adopted a lower starting point of 2 years and 9 months – a substantial reduction from the customary starting point of sentence for domestic burglary by three months (R/S §18 and 23).

(e)   Taking into account the aggravating factors identified by the judge (R/S §24 to 26), the enhanced starting point of 3 years and 3 months’ imprisonment (R/S §27) and the ultimate sentence of 2 years and 2 months’ imprisonment (R/S §29) were not manifestly excessive.

DISCUSSION

10. We are unable to agree with the respondent’s argument.  As explained by this court in HKSAR v Ng Wai Hung [2003] 2 HKLRD 338, the fear that a victim may encounter is what renders domestic burglary particularly serious.  Yeung JA (as Yeung VP then was) put it thus:

“28. Burglary is a serious offence and burglary of domestic premises is even more serious as there is always the possibility of confrontation with the occupant who will be subject to extreme fright when a total stranger invades his privacy. The gravamen in burglary of domestic premises is the fear felt by victims that a thief should have invaded their own house. That is why it may be regarded as an aggravating factor in burglary of premises which are expected to be occupied.”

The same degree of fright cannot, however, be said to be expected in a situation such as the present one.  Confronting an intruder in the common areas of any building (residential or commercial) is unlikely to cause as much alarm (or potential danger) as confronting one in the confines of one’s home.  The reaction of the couple in the present case illustrates the point.

11. The remaining question is: should the invasion of a residential building automatically attract the customary starting point of sentence for domestic burglary, irrespective of what the intruder had targeted?  We do not think so.  If it can be shown to the satisfaction of the sentencing judge that the intruder was stealing from the common areas only and not from inside individual homes, a starting point lower than that of the customary one may – not must – be justified.  The facts of the case and all its surrounding circumstances will determine whether and by how much that starting point should be reduced.  For the matter at hand, given the fact that there was no evidence of a forcible entry into the building, and also the fact that the couple concerned was never put in fear, we think a starting point of 2½ years would be appropriate.  The 6-month enhancement for the presence of aggravating factors, nevertheless, stands.  That entails a final starting point of 3 years, a third of which would be deducted on account of the appellant’s guilty plea.

DISPOSAL

12. For the reasons given above, we allowed the appeal, quashed the original sentence of 26 months’ imprisonment and substituted it with one of 2 years’ imprisonment.

[1]  Referred to by the judge as copper “stripes” in his Reasons for Sentence.

[2]  At paragraph 18 of his judgment, the single judge said this in granting leave to appeal against sentence: “…. the judge was entitled to enhance sentence to reflect the aggravating circumstances of the commission of the offence, namely the creation of a risk to safety, and in having regard to the applicant’s criminal record.  The level of enhancement was within a range available to him.”