HKSAR v. LUO GUIYANG

CACC 44/2021

[2021] HKCA 1321

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 44 OF 2021

(ON APPEAL FROM DCCC NO 82 OF 2020)

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REASONS FOR JUDGMENT

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A.  Introduction

1.  This is an application for leave to appeal against the total sentence of 3 years and 5 months’ imprisonment imposed by HH Judge Dufton (“the judge”)  on 8 February 2021, following his plea of guilty to three charges of burglary and one charge of attempted burglary, contrary to section 11 of the Theft Ordinance, Cap 210, and for the attempted offence also contrary to section 159G of the Crimes Ordinance, Cap 200.

2.  The burglaries and attempted burglary involved domestic premises.

3.  Charges 1 and 2 alleged that the applicant on 12 October 2019 burgled two different flats in Wai Ching Mansion, Nos. 56-68 Wai Ching Street, Yau Ma Tei at the small hours in the morning and stole therefrom cash, namely, HKD3,900 and RMB12,000 (Charge 1); HKD800 and some foreign currencies equivalent to HKD600 (Charge 2).

4.  Charges 3 and 4 alleged that the applicant and D2 on 7 November 2019 jointly attempted to burgle a flat in Siu King Building, Nos. 14-16 Tsat Tsz Mui Road in Quarry Bay; and burgled a flat in Wah Lai Mansion, Nos. 54-76 Marble Road in North Point and stole therefrom cash of HKD1,000 and a wrist watch.

B.  Facts admitted by the applicant

5.  Two days after the applicant entered Hong Kong on the strength of a two-way permit on 10 October 2019, he burgled the domestic premises subject of Charge 1 and Charge 2 in the small hours of the morning and stole cash and foreign currencies placed inside bags on the sofas in the living rooms of the two flats.  The applicant left Hong Kong on 16 October 2019.

6.  The applicant entered Hong Kong again on 5 November 2019 with D2.  Two days later they attempted to burgle a flat by prizing the balcony doors but failed (Charge 3). Subsequent forensic examination showed that the said pry marks were made by a screwdriver found on the applicant at the time of arrest.  Shortly afterwards they burgled the flat the subject of Charge 4 and stole cash placed inside a handbag and a “Casio” watch placed in the living room.  The applicant was seen by a neighbour on the podium and after he fled,  D2 was seen climbing down the pipe near Flat C on the third floor.  These two burglaries happened also at the small hours of the morning.

7.  The applicant and D2 were arrested on 7 November 2019; items found on the applicant including but not limited to four pairs of gloves, a screwdriver, a torch and cash of different currencies.  A paint sample taken from the screwdriver was found to be consistent with the colour and chemical composition of the paint on the balcony door of the flat in Charge 3.

C.  Mitigation

8.  The applicant, aged 37 at the time of sentencing, claimed to work as a farmer in the Mainland and was the sole breadwinner of the family.  His wife left the family and he had to raise two children aged between 6 and 8 on his own.  His mother was disabled.  It was submitted that the applicant committed the offence under the bad influence of his friend and he was in need of money to support his children’s education.

9.  It was also submitted had it not been the applicant’s admission the evidence against him on all the charges were not that strong.  Counsel for the applicant in the court below asked for a further reduction to the one-third.

D.  Reasons for sentence

10.  The judge pointed out that the starting point for a single burglary of domestic premises is 3 years’ imprisonment.  He found the burglaries in respect of Charges 1 and 2 were committed by climbing up the drainpipes on the outside of the building[1] and so were not opportunistic.  He did not find the unsuccessful entry of the flat subject of Charge 3 being a mitigating factor.

11.  The judge took into account the following aggravating factors and enhanced the starting point for each charge by 9 months (to 3 years and 9 months’ imprisonment):

(a)  the applicant came to Hong Kong for the purpose of committing the burglaries;

(b)  the burglaries related to occupied domestic premises and took place in the early hours of the morning when the occupants of the premises were highly likely to be at home; and

(c)  Charges 3 and 4 were committed together with D2.

12.  The judge then reduced the sentence by one-third in light of the applicant’s guilty plea, the sentence for each charge became 2 years and 6 months’ imprisonment.  He did not find any further grounds to reduce the sentence any further.

13.  After taking into account totality, the judge came to the view that an overall sentence of 3 years and 5 months’ imprisonment would properly reflect the applicant’s criminality.  He ordered that 3 months in the sentence of Charge 2;  4 months in the sentence of each of Charge 3 and 4 were to run consecutively.

E.  Ground of Appeal

14.  The only ground advanced by the applicant in the Form XI is that the sentence imposed was manifestly excessive.  At the leave hearing, the applicant supplemented by saying that he pleaded guilty to show his remorse.  His family went into many problems after he was sentenced and he suffered a lot of psychological stress.  He asked for a chance to be sent home early to take care of his children.

F.  Respondent’s reply

15.  Mr Michael Tsang, SPP, submitted that the judge rightly taken into account the various aggravating factors and enhanced the starting point of 3 years by 9 months, and in finding that nothing in the present case justified a further discount to the one-third and had further taken into account totality in ordering partially consecutive sentences. The individual sentences and overall sentence imposed were not manifestly excessive.  Mr Tsang submitted that most of what was submitted at the leave hearing by the applicant had already been advanced in mitigation. None constitutes sufficient ground for leave to be granted.

G.  Discussion

16.  A starting point of 3 years’ imprisonment for burglary of domestic premises by a first offender of full age is well established.  The starting point can be adjusted upwards due to the presence of aggravating factors.  In the present case, the following aggravating features were correctly identified by the judge:

(a)  The applicant was a visitor of Hong Kong at the material times, in fact according to his immigration records, he had entered Hong Kong twice  for commission of the four charges;

(b)  Charges 3 and 4 were committed with another person;

(c)  multiple offences were committed at the material time;

(d)  The premises in question were occupied at the material time; and

(e)  The offence took place in the early hour of the morning when the premises were expected to be occupied.

17.  The applicant’s immigration record showed that he committed the offences within two days after his arrival in Hong Kong on two separate occasions.  The conclusion that he came to Hong Kong to commit the offences is inevitable.  The fact that applicant armed himself with prizing equipment, climbed up drain pipes is far from that of a mere opportunistic burglar.  With the presence of all the aggravating features, the upward adjustment of 9 months could not be said to be inappropriate.  The judge was also correct not to give discount further than the one-third, given the judge’s view that the evidence was not as weak as defence counsel submitted and there was clear authority which affirmed the practice of not having regard to the strength of the prosecution case in determining the discount for a plea of guilty: see HKSAR v NGO Van Nam[2].

18.  An overall sentence of 3 years and 5 months’ imprisonment on a plea, which is equivalent to an overall starting point of about 61.5 months’ imprisonment, could not be said to be wrong in principle or manifestly excessive for the four charges of domestic burglaries with aggravating features.  All that was advanced by the applicant, including the predicament of his family circumstances, does not cause me to find this appeal against sentence reasonably arguable.

19.  I remind the applicant of his right to renew his application for leave to the Court of Appeal may attract a consequence of a direction for loss of time spent in custody pending his appeal, should the Court come to the view that there is no justification for the renewal of his application.