HKSAR v. YEUNG KA KIT JONATHAN

CAC C 160/2013

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 160 OF 2013

(ON APPEAL FROM DCCC NO. 19 OF 2013)

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BETWEEN

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J U D G M E N T

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Hon Lunn JA (giving the Judgment of the Court):

1.  On 10 July 2013 Stock VP granted the appellant leave to appeal against the sentence of 22 months’ imprisonment imposed on him by Chief District Court Judge ST Poon on 24 April 2013 following his plea of guilty to a single charge of burglary. On 7 August 2013, the appellant’s application for legal aid was granted. Now, he is represented by Mr Robert Andrews.

Reasons for sentence

2.  The appellant pleaded guilty to a charge of burglary committed on 10 November 2012 on the 7^th floor of St Paul’s College, 67-69 Bonham Road, Sai Ying Pun in which he stole 21 Aristo textbooks valued at $2,520. The appellant’s attempts to sell the books minutes later to a nearby bookstore met with a rejection by the shopkeeper.  The appellant, who was an alumnus of St Paul’s College, was identified on CCTV by his clothing, which was seized by the police when his home was searched on 30 November 2012.  Having been arrested and cautioned, the appellant admitted having been present on the school premises on the day in question, having signed in the school Visitor’s Register with a false name, but denied having stolen the textbooks.  On 5 December 2012, the appellant was identified by the shopkeeper at an Identification Parade as the person who sought to sell him a number of Aristo text books on 10 November 2012.

3.  The judge noted that the appellant was 37 years of age and a graduate of the Faculty of Arts at the University of Hong Kong but, nevertheless, had been convicted of offences of dishonesty on a number of occasions.  In April 2009, the appellant was declared bankrupt, having sustained financial losses in the 2008 economic downturn.  There followed a series of criminal convictions.  In October 2009, having been convicted of two charges of theft, from a maid in premises where he was employed as a part-time private tutor, he was ordered to serve 160 hours of Community Service.  In October 2010, he was sentenced to 16 months’ imprisonment on each of three charges of burglary, which sentences were ordered to be served concurrently.  In May 2011, he was sentenced to 2 months’ imprisonment, suspended for 18 months, for obtaining credit whilst being an undischarged bankrupt.  Then, in February 2012, he was sentenced by Chief District Judge ST Poon to 20 months’ imprisonment, having pleaded guilty to a charge of burglary in which he had stolen textbooks from St Paul’s College.  In addition, the whole of the suspended sentence was activated and ordered to be served consecutively to the sentence imposed for the burglary.

4.  The judge said that on that occasion on which he had sentenced the appellant in February 2012 he had called for and received reports from both a psychiatrist and a psychologist.  Each of them described the unfortunate death of his girlfriend in 2003.  She was a schoolteacher who had frequent heated argument with janitors at the school at which she worked.  On one such occasion she had fainted.  Later, whilst pregnant, she died from a congenital heart defect.  Thereafter, the appellant had developed a strong dislike for janitors generally and a hatred in particular for those janitors who were rude.  The appellant had explained his commission of the burglary, for which he was sentenced in February 2012, on the basis that, having encountered rudeness displayed towards him from janitors at St Paul’s College, he determined to steal books from the school so that they, the janitors, would fall under suspicion and be blamed for their loss.  The authors of both reports were of the opinion that the appellant showed little remorse, little insight into his problems and possibly exhibited anti-social personality traits, so that there was a risk of re-offending.  However, the consultant psychiatrist, Dr Henry Yuen Cheung Hang, was of the opinion that the appellant was not mentally ill and did not require psychiatric treatment.  The clinical psychologist, Ms Karli WC Chan, was of the opinion that, although the appellant did not require psychological services, he might benefit from counselling services.

5.  In the instant case, the judge determined, notwithstanding a letter written to the court by the appellant expressing remorse, that the appellant showed “little remorse”.  He noted that the offence was premeditated, in that the appellant had entered a false name in the school Visitor Register.  His motive in stealing the books was greed.  Moreover, he said that the previous sentence of imprisonment had proved insufficient as a deterrent to the appellant from committing similar offences.

Starting point

6.  Noting that the usual starting point for sentence for the offence of non-domestic burglary was 2½ years’ imprisonment, the judge adopted that as the initial starting point, which he enhanced by four months, “for personal deterrence” of the appellant.  For the promise of the payment of compensation to the school for the loss of the textbooks the judge afforded the appellant a discount of one months’ imprisonment, which reduced the total starting point for sentence to 33 months’ imprisonment.

Sentence

7.  Having regard to the appellant’s plea of guilty, the judge sentenced the appellant to 22 months’ imprisonment.  In addition, the judge ordered that the appellant pay St Paul’s College $2,520 as compensation within 7 days.

GROUND OF APPEAL AGAINST SENTENCE

8.  Mr Andrews adopted the appellant’s home-made grounds of appeal against sentence, to which he added a single Perfected Ground of Appeal, namely that the judge was wrong to enhance the starting point taken for sentence at all and, in particular, by 4 months’ imprisonment.  In his home-made grounds of appeal against sentence the appellant contended that the judge erred in determining too high a starting point for sentence and, in doing so, was overly influenced by the fact that he was the judge who had sentenced the appellant in February 2012 for a burglary committed at St Paul’s College.

9.  In his written submissions Mr Andrews drew the court’s attention to certain observations that Stock VP made in granting leave to appeal against sentence:

“On the face of matters there is nothing wrong with the sentence imposed by the judge but there are a couple of factors which motivate me to the view that the case merits some consideration by a full bench, and they are the unusual background of this applicant and the unusual circumstances in which, so it would appear, he first came to commit these burglary offences. He was sentenced for his first theft offence in October 2009 when he was aged 33 years. That date coincided with great financial difficulties which faced him, as well as to an unfortunate incident relating to his girlfriend. He seems thereafter to have immersed himself in a cycle of similar crime and it is a matter of puzzlement that somebody with this background has done so. Accordingly I think his case should be considered in order for the court to decide whether the imperative of individual justice has been satisfied and whether something constructive might be done in relation to his future.”

10.  Realistically, Mr Andrews accepted that the options available to the court in dealing with the appellant were limited.  He accepted that alternatives to immediate incarceration had been tried by the courts in the past and had failed.  On 20 October 2009, the appellant had been made the subject of a Community Service Order of 160 hours duration.  However, on 26 October 2010 the order had been discharged on the appellant’s conviction of three offences of burglary, for which he had been sentenced to a total of 16 months’ imprisonment.  On 23 May 2011, the appellant had been sentenced to 2 months’ imprisonment suspended for 18 months for obtaining credit whilst being an un-discharged bankrupt.  That sentence was activated on 2 February 2012 on the occasion on which the Chief District Court Judge ST Poon sentenced the appellant for the first of his burglaries at St Paul’s College.

11.  Mr Andrews invited the court to note that in respect of both burglaries committed at St Paul’s College, in contrast to the earlier burglaries and the offences of theft, the appellant had explained his conduct, namely as being motivated by seeking to take revenge on the school’s janitors.

12.  Mr Andrews submitted that the judge had erred in rejecting the appellant’s expressions of remorse contained in a letter presented to the court.  He suggested that the judge ought to have regarded that as an indication that finally the appellant wished to break what Stock VP had described as the “cycle of similar crime”.  In that letter the appellant described the combination of family illnesses, together with news that the trustee in bankruptcy would oppose the discharge of his bankruptcy, at the culmination of the four-year term of the bankruptcy order, as causing “unremovable pressure or stress”.  He claimed that it was his “mistake” to have sought to relieve that pressure by committing the instant offence.  The appellant asserted that he proposed seeking assistance from a voluntary organisation, the Kun Sun Association, from which he would receive assistance and counselling in order to get to the root of his problem.  His objective was to resume his career and place in society.  Furthermore, the appellant not only apologised to all his victims but also offered compensation for their loss of property, asserting that he was sincerely repentant.

13.  Mr Andrews submitted that, with the support of his parents, evidenced by their letter to the court in support of the appellant, the judge ought to have regarded the appellant as having put behind himself the “illogical, senseless chip on his shoulders, which had driven him to commit crime”.

14.  Whilst the judge had adverted to the letter written by the appellant for consideration of the judge at sentencing, the judge did not refer to the assertion by the appellant that he acknowledged that he needed assistance and counselling to get to the root of his problems.  Furthermore, although the judge had the benefit of a psychiatric and a psychological report, they had been prepared in January 2012 for the appellant’s sentencing by the judge on the earlier occasion of his first burglary of St Paul’s College.  Accordingly, we ordered the preparation of an up-to-date psychological report on the appellant.

A CONSIDERATION OF THE SUBMISSIONS

15.  The complaints that the appellant in person makes that it was inappropriate, and that it resulted in unfairness, that the instant case was transferred to the District Court and that the Chief District Judge presided over the case, notwithstanding that he had imposed sentence in the earlier burglary of St Paul’s College are without any merit at all.  The District Court was the appropriate venue for trial.  Further, there is no good reason why a judge may not deal with a defendant on two or more separate occasions of sentencing.  Moreover, it is clear that, as was to be expected, he approached the task of sentencing in both cases conscientiously and with considerable care.  As observed earlier, in the previous case he called for and had the benefit of reports compiled by a psychiatrist and a psychologist, together with a background report on the appellant.

16.  There is no doubt that the appellant’s behaviour is thoroughly perplexing.  The two burglaries committed at St Paul’s College, his Alma Mater, the one in July 2011 and the other at end of the November 2012 were committed for relatively small potential monetary gain.  In the knowledge, from the Summary of Facts relating to the earlier burglary, that he had been captured on CCTV as he wandered around the college premises, the appellant repeated that behaviour in the instant case, retaining the distinctive clothing that he had worn by which he was recognisable.  Once again he was captured on CCTV.  Furthermore, as the judge noted, the instant offence was committed within 28 days of the appellant being released from custody, having served the earlier sentence.  Moreover, in trying to sell the books very soon after he had stolen them, clearly the appellant was trying to obtain immediate pecuniary benefit from the crime.

17.  The court has been provided with a Probation Officer’s report prepared for the hearing of 15 August 2013 on the order of Stock VP when granting leave to appeal against sentence.  The Probation Officer noted that the appellant’s parents expressed their desire to do all that they could to assist the appellant to reform and resume a normal law-abiding life.  However, noting that the appellant had “repeatedly violated the law” and failed to comply with the Community Service Order and the suspended sentence of imprisonment, the probation officer concluded that “statutory supervision in an open setting may not be effective in helping him to live a law-abiding life”.  As a result, a Probation Order was not recommended for the appellant.

18.  In addition, the court now has the benefit of a report, dated 6 September 2013, prepared at its request by Ms Sarina Lam, a Clinical Psychologist of the Correctional Services Department.  Ms Lam noted that during her assessment of the appellant the latter had failed to explain why it was that he had used a false name to enter the school.  On the other hand, he contended that it was the duty of the security guards at St Paul’s College to ensure that an accurate record was kept of visitors to the school.  Ms Lam said that the appellant repeated his intention to seek counselling to help him from committing further offences.  Although the appellant had expressed remorse for his commission of the offence, nevertheless it was Ms Lam’s opinion that:

“…the way he presented the offence remained evasive and defensive. He denied his intent to steal yet he sneaked into the victimised school using false name without reasonable explanation. He tended to blame others for his wrong-doing (such as a security guard of the school was not checking the visitor’s identity properly) and minimised responsibility for his own actions.”

19.  Overall, it was Ms Lam’s conclusion that the appellant had a persistent tendency to minimise his own wrongdoing and her opinion that he did not suffer from major psychopathology.  Nevertheless, it was her recommendation that:

“To prevent relapse, he was advised to pay higher regards to the Laws, to be more willing to share his problem with others, more patient and effortful in generating alternative solutions, and more adaptive in handling his anxiety.”

20.  Ms Sarina Lam assisted us with oral evidence at the resumed hearing.  She reiterated her opinion that the apparent is not suffering from major psychopathology.  However, she said that everyone in society, including the appellant, can benefit from psychological counselling.  Such services are provided by private practitioners, Non-Government Organisations (“N.G.O.”) and by the Government.  She informed the court that she would provided her with a list of the providers of such services.

21.  There is no dispute that when confronted with a defendant who commits offences of the same kind persistently, notwithstanding the repeated imposition of sentences of imprisonment, a court is entitled to enhance the starting point taken for sentence to reflect that conduct.  The judge’s enhancement of 4 months’ imprisonment of an initial starting point of 30 months’ imprisonment was a considerable enhancement of sentence.

22.  In perspective it is clear that the appellant has been in an ever increasing downward spiral in his life since he was declared bankrupt in April 2009.  Soon after, he embarked on what has become a relentless pattern of criminal conduct.  Following his graduation in 1998, from the University of Hong Kong with a degree of Bachelor of Arts, the appellant had pursued a variety of jobs in a pattern of continuous employment.  Obtaining and retaining employment became more difficult for the appellant following his descent into crime.  For the reasons expressed earlier, we find the appellant’s commission of the instant offence perplexing.  In other circumstances, it might have been regarded as a cri de coeur.  However, it is clear that all those who have reported on the appellant have expressed reservations about the genuineness of the appellant’s remorse and acceptance of his own culpability.

23.  Nevertheless, we accept the submission made by Mr Andrew’s that, in the particular and peculiar circumstances of this case, the enhancement of sentence stipulated by the judge was excessive.  With respect to the judge, in our judgment the appropriate enhancement of sentence was to be achieved by one months’ imprisonment from the initial starting point taken for sentence, namely 30 months’ imprisonment.  The judge’s reduction of the enhanced starting point for sentence by one month, to reflect the appellant’s compensation to the victims by payment of $2,500, was generous, but clearly within his discretion.  Accordingly, in our judgment the appropriate starting point for sentence was 30 months’ imprisonment.  There is no dispute that the appellant was entitled to a discount of one-third from that sentence.

Conclusion

24.  In the result, we allow the appeal against sentence and quash the sentence of 22 months’ imprisonment imposed on the appellant and in its place we impose a sentence of 20 months’ imprisonment.  In doing so, we express the hope that the appellant will pursue his intended course of seeking assistance by counselling so that he can desist from a life of crime and resume his place in society.  No doubt, were he not to do so, a court dealing with him in the future would be less sympathetic.