HKSAR v. HUI YEE LUNG

CACC 406 /2011

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 406 OF 2011

(ON APPEAL FROM DCCC No. 811 of 2011)

____________

____________

_____________

J U D G M E N T

_____________

Hon Lunn JA (giving the Judgment of the Court)

1. The applicant seeks leave to appeal against the sentences of imprisonment imposed upon him in the District Court by Deputy District Court Judge Joseph To on 26 September 2011, following his pleas of guilty to 7 charges of burglary.

THE CHARGES

2. 1)  Charge 1 concerned a burglary committed on and between 18 and 20 October 2008 in the office premises of the Baptist Oi Kwan Social Services in Wan Chai.  The property stolen included two notebook computers, a video camera and $300.

2)  Charge 5 concerned a burglary committed on 25 April 2011 in rooms in the Engineering Building in the central campus of the Chinese University of Hong Kong.  The property stolen included 15 notebook computers, a mobile telephone and a digital camera.

3)  Charges 7, 9, 10 and 11 concerned burglaries committed on different days on and between 1 and 14 May 2011 in different rooms in buildings of the Hong Kong Baptist University.  In each of the burglaries the subject of charges 7 and 9 a notebook computer and a small amount of cash were stolen.  In the burglary the subject of charge 10, three notebook computers were stolen.  In the burglary the subject of charge 11, a mobile phone and just less than $1,000 were stolen.

3. Charge 8 was a burglary committed on 6 May 2011 in an office of the Home Affairs Department in Sha Tin, in which $2,000 and eight gift coupons for the retrieval of cakes were stolen.

THE FACTS

4. On 14 May 2011, the applicant was intercepted by a plainclothes police officer in the vicinity of the Hong Kong Baptist University and found to be in possession of a mobile telephone, the screen display of which was in the name of another person.  In response to the words of caution being administered, the applicant admitted that he had stolen it from a room in the University.  Subsequently, under caution he admitted other burglaries at the University, as reflected in charges 7, 9 and 10 together with the other burglaries to which he pleaded guilty.  A fingerprint lifted from the scene of the burglary the subject of charge 1, which was committed between 18 and 20 October 2008, was matched with that of the applicant.

THE SENTENCES

5. On charges 1, 7 to 11 the applicant was sentenced to 26 months’ imprisonment.  On charge 5, he was sentenced to 28 months’ imprisonment.  Twenty-two months’ imprisonment of the sentence imposed in respect of charge 5 was ordered to be served consecutively to the sentences imposed in respect of all the other charges.  Twelve months’ imprisonment of the sentences imposed in respect of charges 10 and 11, was ordered to be served consecutively to the sentence imposed in respect of charges 7 and 9.  Finally, twelve months’ imprisonment of the sentence imposed in respect of charge 8 was ordered to be served consecutively to the sentences imposed in respect of charges 7, 9, 10 and 11.  Accordingly, in the result the total sentence of imprisonment imposed upon the applicant was 6 years.

REASONS FOR SENTENCE

6. In his reasons for sentence the judge noted that the applicant had been convicted on no less than 10 previous occasions.  Those convictions concerned no less than 28 offences of burglary.  In 1992, the applicant had been sentenced to be detained in a Detention Centre for an offence of theft.  In 1993, he had been ordered to be detained in a Training Centre for five charges of burglary.  In 1999, he had been sentenced to 2½ years’ imprisonment for 10 charges of burglary and four charges of theft.  In 2003, he had been sentenced to 3 years’ imprisonment for three charges of burglary and five charges of obtaining/attempting to obtain property by deception.  In 2005, he had been sentenced to 4 years’ imprisonment for three charges of burglary.  In 2007, he was sentenced to 2 years’ imprisonment for an offence of burglary.  In 2009, he was convicted of three charges of burglary and one charge of going equipped to steal.  Two of those burglaries were committed in rooms at the Chinese University and the other burglary at the Hong Kong Polytechnic.  On appeal (CACC 284/2009; unreported 22 July 2010) the total sentence of imprisonment imposed upon the applicant was reduced by this Court to 3 years and four months’ imprisonment.  The applicant had the advantage of being represented by Mr H Y Wong.  In the judgment of Tang VP the applicant was described as a “professional criminal”.

7. The judge noted that the applicant had committed the burglary the subject of charge 5 within three weeks of his release from prison.

8. The judge said that the usual starting point for sentence in a case of burglary of non-domestic premises is 30 months.  However, he went on to note that  in SJ  v Chan  Tsz Lung CAAR 4/1998 this Court had determined that the appropriate overall starting point for 15 charges of burglary, for a respondent who had numerous convictions for dishonesty, was five years’ imprisonment.

9. In the judgment of this Court in  HKSAR v Cheng Wai Kai CACC 338/2007 circumstances in which it would be appropriate to adjust the starting point upwards for aggravating circumstance were identified, which circumstances included (paragraph 15) :

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

(5) event has previous convictions, particularly previous convictions of similar nature, and;

(6)   the offender commits multiple offences.”

The starting point of five years’ imprisonment taken by the judge, for an applicant who was adjudged to be a professional burglar, was not criticized.

10. Finally, the judge noted that in HKSAR v Fan Kit Hung CACC 62/2009 this Court had approved a starting point of six years’ imprisonment for multiple offences of burglary committed by professional burglar.

11. The judge identified aggravating circumstances in the instant case as including:

(i)  that the applicant had committed offences of burglary over a period of two decades and had re-offended on each occasion soon after having been released from incarceration;

(ii)  that in the instant offences he had targeted universities;

(iii)  that the items stolen were valuable, with significant resale value;

(iv)  that the applicant was a professional burglar; and

(v)  that the loss of computers risked the loss of personal data, perhaps impossible to replace, and for computers stolen from universities, risked the loss of research material.

In respect of the last aggravating circumstance, the judge said that there was a public interest in protecting universities and those that worked in them from burglars.

Overall starting point

12. The judge stipulated an overall starting point for sentence of 7½ years’ imprisonment.

Starting point

13. The judge stated that he took a starting point of 33 months for each of the charges, save that for charge 5 he stipulated a starting point of three years’ imprisonment.

Discount

14. Having said that, other than the applicant’s pleas of guilty, there were no other factors relevant to mitigation, the judge said that he afforded the applicant a discount of only 20% from that stipulated as the starting point for sentence.  He said that he did so having found that the pleas of guilty did not reflect true remorse in the applicant.  Of the applicant’s conduct he said:

“ The defendant in this case re-offended with the month his release from prison, and he did so as an extension of a criminal act and of life over some 20 years. In the court’s view, when he committed the offences in this case, he must have counted upon the leniency of a sentencing court to accord him with one-third discount on a plea of guilty; this is a special circumstance justifying a departure from the sentencing norm.”

Sentence

15. In the result, the Judge imposed sentences of 26 months’ imprisonment in respect of each of the charges save for charge 5, for which he imposed a sentence of 28 months’ imprisonment.  By making some of those sentences consecutive with other sentences of imprisonment the judge imposed a total sentence of six years’ imprisonment on the applicant.

GROUNDS OF APPEAL AGAINST CONVICTION

16. Three grounds of appeal against sentence were advanced on behalf of the applicant by Mr H Y Wong, namely that:

(i)  the overall starting point of 7½ years’ imprisonment was manifestly excessive;

(ii)  the judge erred in affording the applicant a discount of only 20% in consequence of his pleas of guilty; and

(iii)  that the resulting total sentence of six years’ imprisonment was manifestly excessive.

THE RESPONDENT’S SUBMISSIONS

Discount from the starting point

17. On behalf of the respondent Ms Hermina Ng accepted that, given that the applicant’s pleas of guilty were made in a timely fashion, there were no proper reasons to afford him a discount of less than one third from that taken for the starting point.

18. On the other hand, she submitted that, having regard to the applicant’s appalling criminal record, including multiple convictions in respect of burglary, the fact that the offences reflected in the charges, other than in charge 1 were all committed within weeks of having been released from a term of imprisonment for earlier offences of burglary, the total sentence of imprisonment imposed on the applicant, namely 6 years, was appropriate.  In that respect, the court was invited to have regard to the fact that none of the stolen property, other than that the subject of charge 11, had been recovered.  Accordingly, in total 22 computers, two mobile phones, two digital cameras and over $4,000, together with other miscellaneous items, had been stolen and were lost to their owners.

A CONSIDERATION OF THE SUBMISSIONS

The starting point for sentence: each charge

19. No issue was taken on behalf the applicant with the starting points for sentence taken in respect of the individual charges.  In the result, we are satisfied that he was entitled to stipulate the starting point for sentence that he stated.

Discount

20. Clearly, Ms Ng was correct to concede that, given the applicant’s timely pleas of guilty to the charges, save in exceptional circumstances the applicant was entitled to a discount of one third from that taken for the starting point for sentence.  (See HKSAR v Li Tak Yin [2003] HKLRD 519 and HKSAR v Chui Chi Wai & Another (No. 2) [2000] 1 HKLRD 704.)  There were no exceptional circumstances in this case.  With respect, the factors described earlier to which the judge had regard in reducing the discount in sentence for the applicant were irrelevant.  The judge’s approach was flawed.

Overall starting point

21. The burglary the subject of charge 1, committed between 18 and 20 October 2008, clearly falls into a different period of the criminal conduct of the applicant.  His culpability in that offence was established through fingerprint identification. By contrast, the remaining charges fall within a narrow period.  The burglary the subject of charge 5 was committed on 25 April 2011, in premises at the Chinese University.  Then, the applicant was involved in a spree of four burglaries at the Baptist University in the period on and between 1 and 14 May 2011.  In the middle of that series of burglaries he committed the burglary, the subject of charge 8, at the offices of the Home Affairs Department in Sha Tin on 6 May 2011.

22. Relevant to the consideration of the overall total starting point to be taken for sentence is the number of burglaries, the period over which they were committed, the property stolen and whether or not it was recovered.  The bulk of the property stolen was notebook computers, several digital cameras and mobile telephones.  There was no evidence as to the loss of irreplaceable data on computers.  There were no aggravating features, such as damage caused in the course of the burglary.

23. In Fan kit Hung the court was concerned with an applicant who had pleaded guilty to no less than 13 burglaries that had been committed over a four-month period in which over $130,000 in cash, together with other items had been stolen from various shops. None of the property had been recovered.  He had been sentenced to 6 years’ imprisonment. By contrast with this applicant that the appellant had no previous convictions for burglary, albeit that he had one conviction for robbery.  In the judgment of this Court McMahon J quashed that sentence and, having stated that the appropriate starting point for sentence was six years’ imprisonment, imposed a total sentence of four years’ imprisonment.

24. As this Court has said on numerous occasions the unique factual matrix of any particular case has always to be borne in mind when having regard to sentences imposed in previous cases.

25. In result, having regard to all the circumstances we are satisfied that the overall starting point for sentence of 7½ years’ imprisonment stipulated by the judge was manifestly excessive.  In our judgment the appropriate overall starting point for sentence is six years’ imprisonment. Having afforded the applicant a discount of one third to that starting point, the overall sentence to be imposed is four years’ imprisonment.

26. Affording the applicant a one third discount to the starting points taken for sentence, the individual sentences to be imposed are :

•    charge 5 -- two years’ imprisonment; and
•    charges 1, 7 to 11 inclusive -- 22 months’ imprisonment.

27. To give effect to those determinations, we quash the sentences and the related orders that the judge imposed in respect of each of the charges.  In their place, we impose the following sentences:

•    two years’ imprisonment in respect of charge 5; and
•    22 months’ imprisonment in respect of each of charges 1 and charges 7 to 11 inclusive.

28. We order that 6 months of the sentence of imprisonment imposed in respect of charge 1 be served consecutively to the sentence of two years’ imprisonment imposed in respect of charge 5 and that 18 months’ imprisonment of the sentence of 22 months’ imprisonment imposed in respect of charge 10 be served consecutively to the resulting total sentence of imprisonment imposed in respect of charges 1 and 5.  Accordingly, in the result the total sentence of imprisonment imposed is 4 years.