HKSAR v. GAO CHUANGLU

CACC 25/2013

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 25 OF 2013

(ON APPEAL FROM HCCC 378 OF 2012)

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REASONS FOR JUDGMENT

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Hon Lunn JA (giving the reasons for judgment of the court):

1. At the hearing we refused the applicant’s application for leave to appeal against the sentences of imprisonment imposed upon him on 21 December 2012 by Deputy High Court Judge Albert Wong, following his committal to the High Court for sentence after his pleas of guilty in the Magistracy to 3 charges of burglary of commercial premises and said that we would give our reasons for so doing in due course. That, we do now.

The Charges

2. The three offences of burglary, contrary to section 11(1)(b) and (4) of the Theft Ordinance, Cap. 210 with which the applicant was charged were alleged to have been committed on different dates on different premises.

Charge 1

Charge 1, alleged that on 27 August 2010 the applicant, together with two other persons, had burgled premises on the ground floor of 74, Connaught Road West and stolen four bags of shark fins.

Charge 2

Charge 2, alleged that on a day on and between 2 and 6 February 2011 the applicant had burgled premises on the ground floor of 63, Connaught Road Central and stolen $1,300 in cash, DVD player, a computer and three suitcases.

Charge 3

Charge 3, alleged that in the same time period as alleged in charge 2 the applicant had burgled premises on the ground floor of 62, Connaught Road Central and stolen 520 watches, jewellery, $260,000 cash and 82,000 Renminbi.

The Facts

3. In pleading guilty to those three charges of burglary the applicant accepted as a factual basis for those pleas of guilty being accepted a Summary of Facts.

Charge 1

4. Entry to the premises in which the burglary the subject of charge 1 was committed was achieved by the burglars gaining access to adjoining premises and then making a hole 3’ x 3’ into the wall separating those premises from the neighbouring premises.  Implements used to make the hole in the wall together with devices to interfere with the sensors of the burglar alarm in the premises were recovered by investigating police officers.  The four bags of shark fin stolen from the premises were valued at over $115,000.  The applicant’s fingerprints were found on a device used to interfere with the burglar alarm.  Immigration records evidenced the fact that the applicant had entered Hong Kong on 23 August and departed on 30 August 2010.

5. Having been arrested on 24 May 2012 at the Lo Wu Control Point and cautioned in respect of the burglary of subject of charge 1, the applicant explained that he had been invited by a friend to come to Hong Kong to commit burglary.  In a video record of interview he said that he was one of three burglars and that he had climbed into premises adjoining the burgled premises and opened the door to permit the others to enter.  Then, they have broken a hole in the wall with wooden poles and a hydraulic jack.  Although they had troubled to cover the alarm, in due course it sounded and they left the premises prematurely, taking with them only four bags of shark’s fins.  He obtained $12,000 to $13,000 as his share of the profits of the enterprise.

Charges 2 and 3

6. The premises burgled in the offences the subject of charges 2 and 3 were adjoining premises.  On the evening of 2 February 2011 the owners of the respective premises closed and locked those premises in anticipation of the forthcoming Lunar New Year.  Entry to the premises the subject of charge 2, occupied by the Buddhist Philosophy Bookshop, was achieved by the burglars prising open the roller shutter.  Then, the burglars dug a hole in the wall between those premises and the premises the subject of charge 3.  Those premises were occupied by the Great China Watch Company.  The external burglar alarm sited over the entry to those premises had been cut and removed.

7. Property to a total value of about $3,500 was stolen from the Buddhist Philosophy Bookshop (charge 2).  Watches to a value of over $20,500,000, together with jewellery worth over $1.8 million and currency to a total value of more than $340,000 in cash was stolen from the premises of the Great China Watch Company (charge 3), after a hole was cut into the steel door of the strongroom.  The total value of the property lost was $22.75 million.

8. DNA matching that of the applicant was found on a water bottle stolen in the Buddhist Philosophy Bookshop and on a cigarette butt found in the Great China Watch Company.  Immigration records evidenced the fact that the applicant had entered Hong Kong on 1 February and departed on 5 February 2011.

Reasons for Sentence

9. In his reasons for sentence the judge noted that the applicant was a 44-year-old resident of the Mainland, married with teenage children.  Further, he noted that the applicant had a number of previous convictions in respect of immigration offences.  In 1995, the applicant had been sentenced to a total of 15 months’ imprisonment for the offences of possession of a forged Hong Kong identity card of unlawfully remaining in Hong Kong.  In 2001, the applicant had been sentenced to 2 months’ imprisonment for breach of a condition of stay.  In 2003, he had been sentenced to 4 months’ imprisonment for making a false statement to an Immigration officer.

10. Having observed that the three burglaries had been committed in commercial premises, the judge said that the starting point for sentence for such an offence was normally 2½ years’ imprisonment.  However, he went on to note that this court had said on a number of occasions[1] that the usual starting point for sentence should be increased if there were aggravating circumstances in the commission of the offences, such as that the burglars were professional or serial burglars or, inter-alia, the premises targeted involved substantial property.

11. The judge said that he found the applicant to be a professional burglar.  Of the 3 offences committed by the applicant, the judge said that they were[2] :

“ …obviously premeditated, well-planned and heavily equipped. You targeted substantial properties obviously with an intention to steal very valuable properties.”

12. The judge went on to note that the burglary the subject of charge 1 had been committed with two other persons and that a substantial value of property was stolen.  Further, he said that the value of the property stolen in the burglary the subject of charge 3 was much more substantial, namely in the region of $22 million.  Moreover, the applicant had been sufficiently well equipped to break a hole not only into the wall between the two premises but also into the strongroom door.  Finally, the judge stated that he drew the inference from the applicant’s travel movements that he came to Hong Kong, “with the primary purpose of committing the offences”.

Starting point

13. The judge indicated that in all those circumstances he took a “higher than usual starting point” for the respective offences.  In the result, he stipulated that he took the following starting points for sentence :

Charge 1 ‒ 4 years’ imprisonment;

Charge 2 ‒ 3 years’ imprisonment; and

Charge 3 ‒ 8½ years’ imprisonment.

Discount

14. The judge said that for the applicant’s pleas of guilty he afforded the applicant a discount of one third from the starting points taken for sentence.

Sentence

15. Accordingly, the judge sentenced the applicant to the following terms of imprisonment :

Charge 1 ‒ 2 years and 8 months;

Charge 2 ‒ 2 years; and

Charge 3 – 5 years and 8 months.

Totality of sentence

16. Having said that the applicant had committed three offences in two incidents and having adverted to the judgment of this court in HKSAR v Fan Kit Hung[3] the judge said that, having regard to the principle of totality of sentence, he took a “notional starting point” of 10 years’ imprisonment.  Affording the applicant a discount of ⅓ to that notional starting point, the judge determined that the appropriate total sentence to impose upon the applicant was 6 years and 8 months’ imprisonment.  In order to give effect to that determination the judge said that he ordered the sentences imposed in respect of charges 2 and 3 to be served concurrently and that 12 months of the sentence of imprisonment imposed in respect of charge 1 be served consecutively to the aggregate sentence imposed in respect of charges 2 and 3.  Accordingly, the total sentence of imprisonment imposed on the applicant was 6 years and 8 months.

GROUNDS OF APPEAL AGAINST SENTENCE

17. In the grounds of appeal against sentence submitted on behalf of the applicant, Mr Bernard Chung advanced two submissions : first, that the starting point taken for sentence stipulated by the judge of 8½ years’ imprisonment in respect of charge 3 was “too high”.  Secondly, that the “notional starting point” of 10 years’ imprisonment identified by the judge as appropriate having regard to the totality principle was likewise “too high”.  In consequence, he contended that the resulting sentence of 6 years and 8 months’ imprisonment was manifestly excessive.

The starting point for charge 3

18. Mr Chung conceded at the outset that the starting point of 2½ years imprisonment usually taken as the starting point for sentence after the trial for burglary of non-domestic premises had no application in the present case.  He invited the court to have regard to the judgment of this court delivered by Yeung JA, as he was then, in HKSAR v Cheng Wai Kai[4], as identifying aggravating circumstances which entitled a court to make an upward adjustment to the starting point of 2½ years’ imprisonment.  He submitted that not all of those aggravating circumstances were applicable to the applicant : in particular, the applicant had no previous convictions for dishonesty, nor was it suggested that he had committed the offence the subject of charge 3 with others or that there was any international element involved.

19. Mr Chung invited the court to note that in HKSAR v Lui Cho Yiu[5] this court did not interfere with an overall sentence of 5 years’ imprisonment, albeit that it was described as “high”.  There, the appellant was sentenced after trial in respect of two offences of burglary in which $45,000 in cash and RMB¥30,000 was stolen, together with some equipment.  The burglars prised open the metal grille to one set of premises and then drilled a hole through the common wall into the adjoining premises which housed a Renminbi exchange business.  Accepting that the amount of property stolen was much less than in the instant case, Mr Chung said that on the other hand the offences in Lui Cho Yiu were committed by the appellant together with others and the appellant had 3 previous convictions for burglary.

20. Next, Mr Chung drew the court’s attention to its judgment in HKSAR v Chan Kong Yiu[6]. There, on his pleas of guilty the appellant had been sentenced to a total of 4½ years’ imprisonment for one charge of burglary, another of conspiracy to steal and a third charge of handling stolen goods.  The appellant had been sentenced to 20 months’ imprisonment for the burglary, 34 months for the conspiracy to steal charge and two years’ imprisonment for the handling charge.  Eight months’ imprisonment of the sentence imposed on the handling charge was ordered to be served consecutively to the other sentences.

21. Mr Chung accepted that on the appellant’s appeal against sentence this court had increased the overall sentence from 4½ years’ imprisonment to 5 years and 8 months’ imprisonment.  However he suggested that of particular relevance was the fact that this court had stipulated as appropriate a starting point of 5 years’ imprisonment for the charge of conspiracy to steal.  A burglary in Tokyo of over $17.8 million worth of watches had been the result of that conspiracy.  Moreover, the appellant was a professional burglar who had committed the burglary with accomplices.

22. Mr Chung submitted that, notwithstanding the fact that over $22.75 million of watches and jewellery had been stolen in the burglary the subject of charge 3 and that it had been preceded by a burglary committed by the applicant six months earlier (charge 1) a starting point of 7 years’ imprisonment for charge 3 would have adequately reflected the applicant’s culpability.

Overall starting point

23. Although Mr Chung submitted that the overall starting point for sentence of 10 years’ imprisonment taken by the judge was excessive, he accepted that the judge was entitled to impose partially consecutive sentences for the different offences.  In support of his submission, Mr Chung invited the court to note that :

in Lui Cho Yiu that this court had approved of a sentence of 5 years’ imprisonment imposed on the appellant in respect of two offences of burglary;

in HKSAR v Xie Guohong[7] this court said that an overall starting point of 7 years and 6 months’ imprisonment for four offences of burglary was manifestly excessive and took a starting point of 6 years’ imprisonment; and

in Chan Kong Yiu, given that the overall sentence substituted by this court was 5 years and 8 months’ imprisonment, it was to be inferred that the overall starting point taking sentence was 8 years and 6 months’ imprisonment for two offences of burglary and one offence of handling stolen goods.

24. For his part, Mr Chung submitted that an overall starting point of sentence in the “region of 8 years” would adequately reflect the applicant’s overall criminality.

25. In Xie Guohong the applicant, a two-way permit holder from the Mainland, was arrested in March 2003 as he tried to return to the Mainland from Hong Kong.  He pleaded guilty to 4 burglaries committed in January and February 2003, three committed on construction sites and one from a university laboratory, in which a total of $470,000 had been stolen, none of which was recovered.  The facts of the commission of the offence are not described in the judgment of this court, in which the overall starting point of 7 years and 6 months’ imprisonment was determined to be manifestly excessive and a starting point of six years’ imprisonment taken instead.  In the result, the court reduced the original overall sentence of 5 years’ imprisonment and substituted an overall sentence of 4 years’ imprisonment.

A CONSIDERATION OF THE SUBMISSIONS

26. At the outset of the court’s considerations of the submissions made on behalf of the applicant, it is important to note that the maximum sentence provided for by section 11(4) of the Theft Ordinance for the offence of burglary is 14 years’ imprisonment.  Obviously, the legislature was aware that the degree of culpability involved in the commission of the offence could vary enormously and, in providing such a significant maximum sentence of imprisonment, acknowledged that there were circumstances in which the culpability attached to the commission of the offence was very serious.

27. Needless to say, the usual circumstances in the commission of an offence of burglary of non-domestic premises do not fall at that end of the spectrum of seriousness.  It was to accommodate those usual circumstances of the commission of the offence, without any aggravating features, that long ago this court identified a sentence of 2½ years’ imprisonment as the usually appropriate sentence after trial[8]. Similarly, it was recognised long ago that circumstances of aggravation in the commission of the offence were to be reflected in higher sentences of imprisonment.

Burglary : aggravating factors

28. In Cheng Wai Kai some of the aggravating factors that may accompany the commission of the offence of burglary were identified as being :

“ (1) the offence is carefully planned and skilfully executed involving the use of heavy instrument or equipment;

(2) the offence is committed by two or more people;

(3) the offence targets at substantial premises and involves substantial properties;

(4) the offender is a professional burglar and not just an opportunist;

(5) the offender has previous convictions, particularly previous conviction of similar nature; and

(6) the offender commits multiple offences.”

29. Realistically, Mr Chung readily accepted that no issue was taken with the judge’s determination that the applicant was a ‘professional burglar’.  Similarly, he accepted that in committing the burglaries the subject of charge 1 and charge 3 the applicant had targeted substantial premises in which was stored property of a substantial value.  Although the applicant and his confederates were interrupted during the burglary of the premises the subject of charge 1, nevertheless they were able to get away with shark fins to a value of $115,000.  Property to a value of no less than $22.75 million was stolen in the burglary of the Great China Watch Company.  Furthermore, he accepted that the applicant had committed three burglaries, albeit committed on only two occasions.

30. There is some force in the submission made by Mr Chung that the judge had treated the burglaries of the Buddhist Philosophy Bookshop and the Great China Watch Company as having been committed by the applicant alone.  Firstly, in contrast to the Particulars of Offence of charge 1, there was no averment that the offence was committed with a stipulated person and/or persons unknown. Secondly, he pointed out that no issue was taken when mitigation was advanced by counsel on that basis.  Mr Chung acknowledged that against those submissions lay the fact that the Summary of Facts, which the applicant accepted on tendering his pleas, stated, “It appears that the culprits after entering Shop B (the Buddhist Philosophy Bookshop) dug the wall and entered Shop C (Great China Watch Company).”  [Italics added.]  Tellingly, in his reasons for sentence whilst the judge described the burglary the subject of charge 1 as having been committed “with two other persons” in the passage that followed immediately, in which he dealt with charge 3, he made no reference at all to other participants in the burglary.  In the result, we are satisfied that the judge approached the issue of sentence in respect of charges 2 and 3 on the basis that they were committed by the applicant alone and that, in all the circumstances, he was entitled to do so.  It is on that basis that we approach the issue.

31. Mr Chung submitted that, although he accepted that “heavy equipment” had been used in order to make the hole between the Buddhist Philosophy bookshop and the Great China Watch Company and in the door to the strongroom, there was no suggestion that it was ‘high technology’ equipment.  It appears that whatever equipment that was used to make those two holes was removed from the premises.  Certainly, the Summary of Facts did not detail in any way how those holes had been made.  Each of them was in the form of a neat square.  The hole in the dividing wall between the two premises was cut through plaster and brick, whereas the hole in the door to the strongroom was cut through two pieces of metal.  The thickness and nature of the metal was not described in the Summary of Facts, nor was it suggested how the holes in the metal had been cut.  The photographs show the metal to be of a substantial nature, so that it is clear that powerful equipment, such as an oxy-acetylene torch or drills with very hardened drill-bit tips, would have been required.

32. Finally, Mr Chung accepted that in the course of the three burglaries substantial damage had been done to each of the premises.  He was correct to accept that also was a factor in the aggravation of the commission of the burglaries[9].

33. A consideration of the ambit of those factors of aggravation clearly lends significant force to the judge’s determination that the burglaries were pre-meditated and well-planned burglaries of carefully targeted premises, from which it was intended to steal very substantial valuables.

34. It is clear that, in addition, the judge regarded the fact that the applicant had come to Hong Kong on two different occasions on which the three burglaries were committed, “with the primary intention of committing the offences” as another aggravating factor in the commission of the offences.  The context in which that conduct is to be viewed, as the judge noted, is that the applicant had committed a number of offences contrary to Hong Kong immigration laws for which he had been imprisoned on three separate occasions : in 1995, for a total of 15 months for possession of a forged Hong Kong identity card and for remaining in Hong Kong after having landed unlawfully; in 2001, for 2 months for breach of a conditional stay; and in 2003, for a total of 5 months for making a false presentation to an immigration officer and for breach of a suspended sentence of imprisonment.

35. Clearly, in all the circumstances the judge was entitled to conclude that the applicant had come to Hong Kong to commit the offences with which he was charged.  In doing so, he was abusing Hong Kong’s generosity in allowing him to come to Hong Kong at all given his significant record of criminal offences in respect of Hong Kong’s immigration laws.  The applicant’s abuse of that generosity was all the greater given the serious nature of the criminal offences that he committed having been allowed to enter Hong Kong on the two separate occasions on which the offences were committed.  In our judgment, the judge was entitled to have regard to that factor as in aggravation of the commission of the offences overall.

36. Of the several cases to which Mr Chung has drawn the court’s attention to assist the court in considering his submissions, on its face the judgment of this court in Chan Kong Yiu might appear to be of most assistance and support of those submissions.  There, the appellant had been sentenced to a total of 4½ years’ imprisonment for three charges : one charge of burglary; a charge of conspiracy to steal; and a charge of handling stolen goods.  In the burglary, which had been committed in January 2003, metal security shutters on commercial premises were forced open and a hand saw used to break into two safes, from which property valued at $6,000 was stolen.

37. The other offences were committed in 2009 and 2010 and, suggested Mr Chung, resonated with the circumstances of charge 3.  The conspiracy to steal charge concerned the period December 2009 and January 2010.  In December 2009, the appellant, together with two accomplices, had travelled to Japan and, after scouting around, had identified premises in the Ginza in Tokyo to burgle.  On 1 or 2 January 2010, having gained access to one set of premises, the applicant and his accomplices used drills and a hydraulic jack to break through the common wall and gain access to a second set of premises, the Tenshoudo Watch shop.  There, they stole 163 watches valued at over $17.8 million, which they sent to themselves in Hong Kong by airmail.  Subsequently, those watches, together with other expensive items of jewellery, were recovered from the appellant, his accomplices and associates.

38. The charge of handling stolen goods related to Rolex watches, 47 of which, valued at about $2.5 million, had been stolen in a burglary in October 2009 from a shop in Nagano Prefecture in Japan.  Four of the watches were recovered from the appellant.

39. Having described the burglary, committed as part of the conspiracy to steal charge, as “one of, if not, the worst burglary that this Court had ever come across”[10] Yeung JA said that, having regard to the appellant’s six previous burglary convictions, the starting point taken by the judge of 51 months’ imprisonment for the conspiracy to steal charge was, “inadequate to reflect the gravity of the offence”, adding that it “should be at least 5 years’ imprisonment.”

40. It is to be noted, that the circumstances in which the court allowed the appeal in Chan Kong Yiu were most unusual, in that the application for leave to appeal against sentence had been mounted as a challenge by the applicant to a total sentence of 4½ years’ imprisonment.  In the result, the court determined that the sentences far from being manifestly excessive were inadequate to reflect the gravity of the offences, in which circumstances the sentences had been increased significantly.  Also, perhaps it was in those unusual circumstances that the court had determined that the starting point taken by the judge in respect of the conspiracy to steal charge should have been “at least five years’ imprisonment” and proceeded to increase the applicant’s sentence on that minimum basis.

41. As Mr Chung has pointed out, one of the factors relevant to his submissions is the fact that the appellant in Chan Kong Yiu was not only a professional burglar but also had six previous convictions for burglary, whereas although the applicant has a number of criminal convictions none was for burglary.  On the other hand, it is to be noted that in Chan Kong Yiu the burglars haul of watches valued at $17,879,812 was not only significantly less in value than the property stolen in the burglary the subject of charge 3, but also all of it was recovered.  By contrast, nothing of the more than $22.75 million of property stolen in the burglary the subject of charge 3 has been recovered.  Indeed, in the course of the hearing the court was informed that all of that loss has fallen on the victims, since the property was not insured.

42. In all the circumstances, we were satisfied that the starting point for sentence stipulated by the judge in respect of charge 3 of 8½ years’ imprisonment, whilst at the high end of the range, was within the range of sentence appropriate to that charge.

Totality

43. Given that the burglaries the subject of these 2^nd and 3^rd charges were committed at a different time and place from the burglary the subject charge one, as Mr Chung conceded, it was appropriate that a part of the sentence imposed in respect of charge 1 be made consecutive to the sentences imposed in respect of charges 2 and 3.  There is no dispute that the burglary the subject of charge 1 was itself serious and fully merited the sentence of 2 years and 8 months’ imprisonment.  We were satisfied that the judge’s order that 12 months of that sentence of imprisonment be served consecutively to the sentences of imprisonment imposed in respect of charges 2 and 3, which resulted in an overall sentence of 6 years and 8 months’ imprisonment was not manifestly excessive.

Conclusion

44. Accordingly, we refused the application for leave to appeal against sentence.

[1] HKSAR v Lui Cho Yiu (CACC 81/2004; unreported, 24 August 2004).  HKSAR v Fan Kit Hung [ 2009] 6 HKC 314.  HKSAR v Cheng Wai Kai (CACC 338/2007; unreported, 29 May 2008).

[2]  (appeal bundle, Page 13 and C-D).

[3] HKSAR v Fan Kit Hung [2009] 6 HKC 314.

[4] HKSAR v Cheng Wai Kai, page 317 A-B, paragraph 10.

[5] HKSAR v Lui Cho Yiu (CACC 81/2004; unreported, 24 August 2004).

[6] HKSAR v Chan Kong Yiu [2011] 4 HKLRD 291.

[7] HKSAR v Xie Guohong (CACC 384 2003; unreported, 5 February 2004).

[8] The Queen v Lau Siu Kwong (CACC 628/1987; unreported, 8 September 1988) and Attorney General v Lui Kam Cha [1993] 1 HKC 215.

[9] HKSAR v Fan Kit Hung [2009] 6 HKC 314 at 317, paragraph 10; and HKSAR v Chan Kwok Choi (CACC 365/2002; unreported, 9 January 2004).

[10] HKSAR v Chan Kong, page 301, paragraph 47.