HKSAR v. CHEUNG TO MING

CACC 406/2005

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

criminal APPEAL NO. 406 OF 2005

(ON APPEAL FROM DCCC NO. 507 of 2005)

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J U D G M E N T

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Stuart-Moore, VP (giving the judgment of the Court):

1.  On 15 June 2005, the appellant pleaded guilty before Deputy District Judge M Wu to charges of burglary, involving the theft of two packets of instant noodles, and remaining in Hong Kong without the authority of the Director of Immigration after having landed unlawfully.  Sentences, with consecutive effect, of 20 months and 15 months’ imprisonment, respectively, were imposed making a total of 35 months.

2.  On 22 September 2005, the appellant applied for leave to appeal against this sentence out of time.  Leave was granted by the single judge on 10 February 2006 on the basis that the facts merited consideration being given to whether a sentence of 20 months’ imprisonment for the burglary was justified.

3.  The burgled premises were the Mai Po Marshes Wildlife Education Centre and Nature Reserve (“the Centre”) at Tam Kon Chau Road where there is a kitchen.  The whole of the Centre was locked up at 5:30 pm on 27 March 2005 but, by 8:30 am the following day, it was discovered that the window next to the front door of the Centre had been broken and that the main door was now open.  Nothing of any real value was taken but ten empty noodles packets were found on a table in the kitchen.  Police later discovered several sets of fingerprints.

4.  At about 11:50 am on 28 March 2005, the appellant was arrested in the company of three other men.  None of them was able to produce any evidence of identity.  In due course, it was found that one of the appellant’s fingerprints matched a print left on one of the noodles packets found in the kitchen.  The appellant admitted the offence and stated that he entered the Centre alone after noticing that the main door had been left open.  He stole the contents of two noodles packets he found on the kitchen table.  He then cooked and consumed these before leaving.

5.  The judge in the court below heard mitigation to the effect that the appellant had been a low-paid construction worker who came to Hong Kong in the hope of earning more money so that he could provide better medical treatment for his 11-year-old son.  The account which the appellant had given to the police was maintained.

6.  In passing sentence, the judge said that whilst there were no aggravating factors, it had for long been accepted that the starting point for a burglary of non-domestic premises should be 2½ years’ imprisonment after trial and she found that the only mitigating factor to reduce this was the appellant’s timely plea of guilty.  The consecutive sentence of 15 months’ imprisonment on the other charge followed well-established authority.

7.  The judge made no finding where, with respect, one was called for, to indicate whether or not she accepted the appellant’s account which effectively limited his criminality to a “walk-in” burglary, stating merely that the appellant:

“… admitted that at about 2.30 am on 28 March 2005 when he went past the Centre, he found the door being left ajar.  As he was hungry, so he entered the Centre and cooked two packets of instant noodles.  He left the Centre after consuming the noodles.  He claimed that he entered the Centre alone.

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7.       On 27 March 2005, he came to Hong Kong with RMB300 only and failed to contact his friend.  He hid in the hillside until midnight and became hungry.  At about 2.30 am, he went past the Centre and found its door open.  So he went inside and ate two packets of noodles, but afterwards he put down RMB2 on the table to show his remorse.” (Appeal bundle p. 9)

8.  This has consistently been the account given by the appellant.  The Summary of Facts made no assertion that it was the appellant who broke the window at the Centre.  There was, in fact, nothing to gainsay the appellant’s account and it is doubtful that a Newton hearing to determine the issue would have been productive as the prosecution was unable to prove that it was the appellant who broke into the Centre.  The only possible inconsistency in the appellant’s story was that police found no trace of any money which it had been stated the appellant had left behind on the table inside the Centre.  In this context, the judge rightly queried whether the guilty plea had been correctly entered but we were told that, after instructions were taken by counsel in the court below, the appellant reaffirmed his plea with an acceptance that he had stolen some of the noodles kept inside the Centre.

9.  It is well established that where mitigating factors are provided to the court which are both plausible and uncontradicted, the judge should proceed to sentence on the basis of the mitigation.  Whilst it may be said that it is unlikely that two separate burglaries must, if the appellant’s account was to be relied upon, have occurred at the Centre on the same night, with the appellant being able simply to walk inside the Centre after one or more other burglars had broken in, this was by no means an impossibility.

10.  We heard from the appellant at length during the hearing on 15 March 2006 and he provided once again a consistent and detailed picture about the offence including his movements immediately thereafter.  It appears that after committing the burglary, the appellant was given accommodation at a house where three others who also had no right to be in Hong Kong were staying.  Ms Louisa Lai, for the respondent, confirmed that none of the other men’s fingerprints matched those found inside the Centre.

11.  Ms Lai also very properly drew our attention to the judgment in HKSAR v Sim Ka-wing, CACC 450/2000 which states as follows:

“9.     The conventional starting-point of 2½ years’ imprisonment for the burglary of non-domestic premises relates to burglaries with no aggravating or mitigating features.  Such burglaries will involve a measure of planning, and thus a degree of premeditation and planning is already built into the conventional starting-point.  The conventional starting-point can be lowered in the case of the opportunistic burglar, akin perhaps to the sneak thief who walks into an open office to steal whatever he can find.  Likewise, the conventional starting-point can be increased in the case of professional criminals who plan their burglaries with meticulous care and steal goods and cash of considerable value.”

12.  We are satisfied in the present case that the only safe basis for dealing with the appellant is to regard him as having been in the same position as a “sneak thief” who was able to walk into the Centre at some stage after one or more others had broken into it.  On this basis, the appellant was entitled to receive a lesser sentence than would usually be given for a burglary of this type.  We consider that an 18-month starting point would meet the justice of the case having regard to the most unusual circumstances in which it seems the appellant committed this burglary.  As the appellant pleaded guilty, the starting point must be reduced by a third to reflect this.

13.  Accordingly, we shall allow this appeal to the extent of reducing the appellant’s sentence by 8 months.  The 20-month sentence for burglary will, therefore, be substituted by a term of 12 months’ imprisonment.  The 15-month sentence on the other charge will remain unaltered and is to be served consecutively, making 27 months in all.