HKSAR v. NG NGAI SHAN

CACC 197/2008

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. CACC 197 OF 2008

(ON APPEAL FROM DCCC NOS. 137 & 257 OF 2008 (CONSOLIDATED))

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J U D G M E N T

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Hon Stock JA (giving the judgment of the Court):

1.  This is an application for leave to appeal again sentence.

2.  The applicant faced three charges but we need not be concerned with the second to which he pleaded not guilty and which was left on the file.  He pleaded guilty to the first and third charges before Deputy Judge Anthony Kwok in the District Court and was sentenced on 14 May 2008 to a total term of three years and nine months’ imprisonment.

3.  The first charge to which he pleaded guilty was one of attempted burglary and alleged that on 10 January 2008 he attempted to enter as a trespasser a switch room on a construction site in Wong Tai Sin.  He was caught in the early hours of the morning by two security guards who saw him cutting a metal chain which secured the switch room.  He was wearing a pair of gloves and a face mask.  He said that he wanted to steal tools inside because his own tools had been stolen.

4.  He was on police bail when he committed the offence that was the subject of the third charge.  It was a charge of burglary.  The offence took place on 26 February 2008.  The applicant climbed into a garage from which he stole a printer, a printer cartridge, three first day covers, two TV tuners, a pair of shoes and various other items.  He was apprehended by two police officers shortly after.

5.  At the day of the offences the applicant was aged 28 years.  He is not a person of previous good character.  When he was aged 16 years, he was placed on probation for two offences of robbery and, subsequently, in 1996, he was fined for an offence of criminal damage and placed on probation for an offence of unlawful sexual intercourse with a girl under the age of 16 years.  The judge rightly took the view that the previous offence of dishonesty, namely, the robbery offence, was committed so long ago and when the applicant was at such a young age, that it should for present purposes be ignored.

6.  It is accepted that the normal starting point for a non-domestic burglary is a sentence of two and a half years’ imprisonment.  That is what the judgerecognised. 

7.  However, the judge said that there was two aggravating features: first, that the burglary, the subject matter of the third charge, was committed whilst the defendant was on bail for the attempted burglary, the subject matter of the first charge.  In treating this as an aggravating feature, the judge was correct if he utilized it in aggravation of the third charge only.

8.  The judge then said that: “Second, the almost identical nature of the two offences means that the sentences on both charges should be enhanced because of multiple burglaries involved.”  In support of this proposition he cited AG v Lui Kam Chi [1993] 1 HKC 215 where the Court of Appeal disapproved of the imposition of concurrent sentences for several offences committed at different times.

9.  What the judge then did was to take a starting point of three years’ imprisonment in relation to each offence and reduce the sentence in respect of each to one of two years’ imprisonment and order that all save three months of the sentence imposed on the third charge was to run consecutively to the sentence on the first charge, the three months concurrently, making a total of three years nine months’ imprisonment.

10.  With respect, we think that the judge erred in his approach.  There are several factual contexts in which sentences are affected by the existence of a number of offences committed on different occasions.  If a defendant is convicted of a charge of, say, dishonesty and it appears from his criminal record that he has committed a series of such offences in the past, that of itself may warrant an enhancement of sentence for the latest offence.  In such a case, the court is not dealing with the appropriateness of the sentences for the other and earlier offences.  This was not such a case.  This was a case in which a court was itself to determine the appropriate sentence for more than one offence committed on separate occasions.  All that Lui Kam Chi was saying, was that in the normal course of events, it is not appropriate for such sentences to be made to run wholly concurrently.  What the judge did was to enhance the sentence that otherwise would have been appropriate for the first charge simply because there was a second charge before him in relation to an offence committed on another, albeit later, occasion.  That, with respect, was not the correct approach.

11.  The correct approach was for the judge to impose an appropriate sentence for the first offence viewed on its own and against the background of the defendant’s history, including his criminal record, and such mitigation as might assist him.  Once he had done that, it was then for him to turn to the second offence (the third charge) and to impose an appropriate sentence for that offence and, having done so, then to look at the question of totality.

12.  Adopting that approach, the appropriate starting point for the first offence was one of two and a half years’ imprisonment and the sentence that have ought to have been imposed for that offence, given the plea of guilty, was one of twenty months’ imprisonment.

13.  Given the aggravating feature in relation to the second offence (the third charge) the appropriate sentence for that offence, before mitigation, was three years’ imprisonment.  Given the plea of guilty, the appropriate sentence for that offence was the sentence in fact imposed, namely, two years’ imprisonment.

14.  Since the offences were committed on separate occasions, principle requires that, subject to the question of totality, the sentences run consecutively.  That would make a total of three years eight months’ imprisonment, already below the totality imposed by the judge.  We think that an appropriate totality, on the approach we have adopted, is a term of three years and three months’ imprisonment.

15.  Accordingly, we grant leave to appeal against sentence and, treating the hearing of the application as the appeal, we allow the appeal and set aside the sentence of two years’ imprisonment imposed on the first charge and substitute therefore a term of twenty months’ imprisonment.  The sentence imposed by the judge in relation to the third charge, that of two years’ imprisonment will stand; but we order that 19 months of the two-year term imposed in relation to the third charge shall run consecutively to the term imposed in relation to the first, the remainder to run concurrently, making a total of three years three months’ imprisonment.