HKSAR v. LAU HIU MAN

CACC 396/2012

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 396 OF 2012

(ON APPEAL FROM DCCC NO. 722 OF 2012)

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JUDGMENT

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Hon McWalters J (giving the judgment of the court):

Introduction

1.  The applicant pleaded guilty to two charges of burglary, contrary to section 11(1)(b) and (4) of the Theft Ordinance, Cap 210 and one count of assault occasioning actual bodily harm (“AOABH”), contrary to common law and punishable under section 39 of the Offences Against the Person Ordinance, Cap 212 before District Judge Woodcock on 18 September 2012.  He was sentenced on the same day to a total of 3 years and 2 months’ imprisonment in respect of these three offences.

2.  The total sentence of the applicant was composed of sentences of 2 years and 8 months’ imprisonment in respect of each of the two burglary charges and 1 year’s imprisonment in respect of the AOABH charge.  The judge further ordered that 4 months of the second burglary charge be served consecutively to the first burglary charge and that 2 months of the third charge of AOABH be served consecutively to the first burglary charge, with the balance of the sentences all to be served concurrently.

3.  On 4 October 2012 the applicant applied for leave to appeal his sentences.

The Circumstances of the Offences

4.  The offences occurred on 15 June 2012 in Room 527, 5^th Floor, Block 10, Shek Lei (II) Estate, Kwai Chung.  Rooms 526 and 527, which are adjacent to each other, were occupied by a husband and wife and their children.  The husband and wife lived in Room 526 and their three daughters, aged between 15 and 17, and a son aged 20, lived in Room 527.  The applicant lived in the same housing estate but not in Block 10.

5.  At about 6 a.m. on 15 June 2012, the applicant was wandering around the estate when he noticed that the entrance to Block 10 was not locked.  He entered Block 10 with the intention of stealing from it.  As he walked passed Room 527 he noticed that its wooden entrance door and iron grille were open. He entered the room and stole a shirt that he found inside it.  Everyone in the room was asleep and no-one was woken up by the applicant’s entry into the room.  The applicant then left the room.  After leaving the room he checked the pocket of the shirt that he had stolen and found that there was nothing valuable inside it.  He then discarded the shirt at the staircase of the block. It was later recovered and confirmed to be a shirt belonging to the son who was one of the occupants of Room 527.

6.  The applicant then returned to Room 527 with the intention of stealing other items from it.  He again found that the doors were unlocked but this time after he had entered the room the mother came into it.  On seeing the applicant she attempted to stop him from leaving.  The applicant pushed her away from him and in so doing caused a 1 cm wound to her right index finger.  The applicant left the room without, on this occasion, stealing anything from it.

7.  CCTV that was installed on the ground floor of Block 10 captured images of the applicant entering the block at about 6.12 a.m. and leaving it at about 6.30 a.m. that day.  The applicant was subsequently arrested by police and under caution he admitted the offences.

The Mitigation Advanced at Trial

8.  The applicant was 38 years of age at the time of these offences and was unemployed.  It was said on his behalf that he had no financial means to support himself and so was desperate.

9.  The applicant has an appalling criminal record with twenty four convictions for burglary.  Additionally, he has other convictions, mainly for drug offences.  His first burglary conviction dates back to when he was only 14 years of age and at the time he was placed on probation.  Two years later, shortly after his probation order would have run its course, he was convicted again of burglary and this time sentenced to Detention Centre.  Three years later, he was convicted of his first possession of dangerous drugs offence and then in 1994 he was convicted of a number of different burglary offences over a period of two months.  For these offences he was sentenced to Training Centre. Between his 14^th and 20^th birthday he had committed 18 offences and experienced probation, detention centre and training centre – effectively every form of non‑imprisonment punishment that the criminal justice system allows.

10.  He next appeared before the court in 1997 when he was convicted of possession of dangerous drugs and was again placed on probation for a period of 18 months.  In the course of this probation order he committed other burglary offences and this time was sentenced to imprisonment for 2 years.  Within two years of his release from jail for these offences he committed further burglaries and this time was sentenced to a period of 32 months.  Again, shortly after his release from prison for these offences he committed an attempted burglary and was sentenced to 22 months.  After this conviction, further convictions followed and he was sentenced to further periods of imprisonment.

11.  This brought him up to 2008 at which time he was convicted of a further burglary offence and sentenced to a total of 2 years and 10 months’ imprisonment.  After release for these offences he was later charged with possession of dangerous drug and was on bail for this offence when he committed the present three offences.

12.  Apart from his plea of guilty there was little else that mitigated the applicant’s conduct.

The Reasons for Sentence

13.  The judge correctly said that normally a 3-year term of imprisonment is the appropriate starting point for a domestic burglary in the absence of any aggravating or mitigating factors.  She could find no mitigating factors but identified three aggravating factors.

14.  The first was that the flat was clearly occupied and consequently the occupants could have been alarmed had they confronted the applicant in their home.  The second aggravating factor was that there was a repeat visit to the premises.  And the third aggravating factor was that the applicant is a persistent offender.  The judge noted that the applicant committed these offences whilst on bail for another offence and so may have also had this in mind, even though she did not specifically identify it as an aggravating factor.  The presence of these factors justified, in the view of the judge, a higher starting point than the normal 3 years’ imprisonment.

15.  The presence of these aggravating factors prompted the judge to adopt a starting point of 4 years’ imprisonment for the first and second charges. For the third charge, the AOABH charge, she took a starting point of 18 months’ imprisonment.

16.  As the judge quite correctly pointed out, the only real mitigation, in the sense of entitling the applicant to a reduction from these starting points, was his plea of guilty and for this the judge awarded him the usual discount of one third.  By this route the judge arrived at final sentences of 2 years and 8 months’ imprisonment in respect of each of the burglary charges and 1 year’s imprisonment in respect of the AOABH charge.  The judge then had regard to the totality principle and concluded that 4 months of the second burglary charge and 2 months of the AOABH charge should be made consecutive, thereby arriving at a total sentence for the applicant of 3 years and 2 months’ imprisonment.

The Grounds of Appeal

17.  There are four grounds of appeal.  The first is that the starting points of 4 years’ imprisonment adopted by the judge in respect of the two burglary offences were manifestly excessive.

18.  The second ground of appeal is that the sentences imposed for the two burglary offences should have been ordered to be served wholly concurrently, and not partially consecutively.

19.  The third ground of appeal is that the starting point of 18 months adopted by the judge in respect of the offence of AOABH was manifestly excessive.  Allied with this is a further ground of appeal that on a proper application of the totality principle the judge should not have ordered as much as 2 months of the AOABH sentence to be served consecutively to the sentence for the 1^st burglary charge.

20.  The final ground of appeal is that in the circumstances of these offences the final sentence for 3 years and 2 months’ imprisonment imposed on the applicant is manifestly excessive.

Discussion

21.  There is no doubt in our mind that the two burglaries are quite separate and distinct and that the second burglary offence adds to the culpability of the first.  There was nothing improper in the judge regarding this as justifying an additional period of imprisonment to the sentence of imprisonment she was imposing on the first burglary.  However, that being said, the first burglary was burglary in its most simple form.  No actual interference with the premises was needed as the entry to the premises was affected simply by walking through an open door.  Nor was there any interference with the occupants of the premises and as no-one was awakened by the applicant’s presence there was no fear or alarm caused to them by the applicant’s commission of this offence. Furthermore, the property stolen in the course of this first offence was not only of trivial value but it was ultimately recovered.  Absent any aggravating factors this offence would have required at most, no more than 3 years’ imprisonment.

22.  However, the second offence, though committed in identical circumstances, did result in the applicant coming into contact with the mother of the occupants and as a result causing a minor injury to her.  The fact that the premises were occupied the time of the burglary, and the mother can properly be characterised as an occupant even though sleeping in the adjacent room, constitutes an aggravating factor that would take the starting point for sentence beyond 3 years.

23.  However, we do not agree that the fact that the second charge represented a repeat visit to the same premises should also operate as an aggravating factor.  As the judge was intending to order that part of the sentence for the second burglary offence be served consecutively to the sentence for the first burglary offence in order to reflect the additional culpability represented by that offence, to regard the commission of the second offence as aggravating the seriousness of the two offences is to, in effect, double punish the applicant.

24.  Apart from the fact that the room was occupied, the other clear aggravating factors in this case are the fact that the applicant committed the burglary offences whilst he was on bail for another offence and the fact that he is a persistent offender.

25.  The principles relating to the sentencing of persistent offenders were set out by this court in HKSAR v Chan Pui Chi [1999] 2 HKLRD 830.  That decision makes it clear that for a persistent offender there is the need to both provide him with additional deterrence and also to protect society from him.  This was explained by Stuart-Moore VP at 834 A to C, where he said:

“This will have the result that the starting point which would have been adopted for a man of good character will sometimes need to be increased to take into account the aggravating features of persistence and the failure of previous sentences to deter on the one hand, and the court’s duty to protect the public on the other. The court, in other words, is passing a deterrent sentence on the persistent offender, from whom the public needs protection, which is often unnecessary on a first or even sometimes a second-time offender.”

26.  In HKSAR v Lam Kwai Wa, unreported, HCMA 1078/2002 Deputy High Court Judge McMahon, as he then was, discussed this principle at paragraph 9 of his judgment when he said:

“As I understand that principle it is not that an offender is being sentenced at a higher level on the basis of his prior criminal record, but that his sentence should be enhanced on the narrower basis that his prior history in repeatedly committing a certain category of offence demonstrates that the personal deterrence factor of previous sentences has been, in that offender's case, insufficient to deter him from again committing that type of offence. Considerations of preventing the offender from further offending in that way and the protection of the public then justify an enhancement of the sentence which would otherwise have been imposed.”

27.  There is no percentage of enhancement that appellate courts have said is appropriate in any particular situation.  The percentage of enhancement will vary according to the seriousness of the offence, the circumstances of the offender and the sentencing purpose for which enhancement is being employed.

28.  Here there were three aggravating factors that we have identified, namely occupancy of the premises, the offences being committed whilst on bail and the fact the applicant is a persistent offender.  The presence of these aggravating factors justifies the adoption of an enhanced starting point.  The only question then becomes by how much the starting point should be enhanced? By increasing it to 4 years the judge enhanced her starting point by one third.  In the present case the reason for enhancement is to properly reflect the seriousness of the offence, to provide additional deterrence to the applicant and to protect the public from his further depredations.  We believe that no more than 9 months, a 25% enhancement, can be justified for these aggravating factors.  This reduces the starting point to 3 years 9 months’ imprisonment which discounted by one third becomes 30 months.

29.  In respect of the starting point on the AOABH charge we agree that a starting point of 18 months is manifestly excessive.  The assault occurred only as a spontaneous reaction by the applicant to his desire to escape the flat and to prevent himself from being restrained by the occupant.  There was no intention by him to cause the person any injury and the injury that was ultimately caused was of a quite minor nature.  There is no doubt that the applicant would have caused fear and alarm to the occupant but to some extent that is also taken into account on the burglary charge.  We are of the view that an appropriate starting point for this offence is 4 months’ imprisonment.

30.  However, we agree with the judge that in order to reflect the additional culpability reflected by these charges she was entitled to order that part of the sentences for the second burglary and the AOABH be served consecutively to the sentence for the first burglary.  We can see nothing wrong with the approach she has taken in this respect but we would reduce the period which she has imposed by 1 month.

31.  Because of the errors we have identified we allow the application for leave to appeal against sentence, treat the hearing of the application as the hearing of the appeal, quash the sentence imposed by the trial judge and in substitution therefore, impose the following sentences on the applicant:

Charge 1 (burglary) :   30 months’ imprisonment

Charge 2 (burglary) :   30 months’ imprisonment

Charge 3 (AOABH) :   2 months and 20 days’ imprisonment

32.  We order that 4 months of the second charge and 1 month of the third charge be served consecutively to the sentence for the first charge, making a total sentence of 35 months’ imprisonment.