HKSAR v. SIM KA WING

CACC 450/2000

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 450 OF 2000

(ON APPEAL FROM DCCC NO. 780 OF 2000)

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J U D G M E N T

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Keith JA (giving the judgment of the Court):

Introduction

1. On 12 October 2000 the Applicant was convicted by Judge Wright in the District Court of burglary. He had pleaded not guilty. He was sentenced to three years' imprisonment. He now applies for leave to appeal against his sentence.

The facts

2. There was no dispute at the trial as to what the Applicant had done. The Applicant had been employed by Delifrance (HK) Ltd., the well-known restaurant chain. He had been promoted over the years, and at one stage he had been the manager of the Delifrance outlet in Worldwide House in Des Voeux Road Central. At the time that he submitted his notice of resignation from Delifrance on 8 June 2000, he had become one of Delifrance's area managers responsible for a number of its outlets.

3. On the evening of 19 June 2000, while the Applicant was working out his period of notice, he hid in a toilet in Worldwide House. He had with him a rucksack containing a number of items for use in connection with the burglary which he was intending to carry out. They included a wig, glasses and cosmetics to disguise himself and a cap conceal his face from the CCTV cameras. They also included an electric drill which he intended to use to drill into the safe, muffling the sound with a pillow which he also brought with him. He also had with him plastic gloves to avoid leaving his fingerprints, a voice-changing device to call for a taxi to make good his escape, and maps of Hong Kong which he proposed to carry when he left the building in the belief that he would not be intercepted if it was thought that he was a tourist.

4. When the restaurant had closed for the night, he used some modified safety pins which he had also brought with him to prize open the rear door to the Delifrance outlet in the building. He drilled into the door of the safe in the kitchen, but was unable to gain access to it. At that stage he switched the kitchen lights on, and that alerted the attention of a security guard. The security guard made his presence known to the Applicant, who tried to brazen things out by saying that he was employed by Delifrance, that he did not have his staff card with him, but that his identity card was in his car. Outside the building, the Applicant made a run for it, but he was caught by two patrolling police officers.

5. What was in dispute at the trial related to what the Applicant had broken into the restaurant for. The particulars of the charge alleged that he had entered the restaurant as a trespasser "with intent to steal therein". His case was that he had broken into the restaurant in order to damage "the money-generating tools" (by which he meant the ovens and other items of equipment) in order to "express his discontent". In his evidence, he explained why he harboured a grudge against Delifrance, and that was expanded on in a psychiatric report on the Applicant which was provided to the judge for the purpose of sentence. His hard work had not been appreciated by management, who had set him unrealistic targets and had threatened to force his resignation. The Applicant was admitting, in effect, that he was guilty of burglary, because a person can be guilty of burglary if he enters a building as a trespasser intending to damage anything in it. What he was denying was that he had been guilty of the particular form of burglary with which he had been charged, namely entering a building as a trespasser intending to steal anything in it.

6. The judge was satisfied beyond a reasonable doubt that the Applicant had broken into the restaurant in order to steal, and he therefore convicted the Applicant as charged. Indeed, the Applicant had admitted being heavily in debt, and he must be taken to have known that it was likely that there had been money in the safe. The amended perfected grounds of appeal against sentence disclose an attempt to challenge the judge's finding as to what the Applicant had intended to do, even though there was no application for leave to appeal against his conviction. That attempt is no longer relied upon by Mr David Tolliday-Wright for the Applicant.

The judge's approach to sentence

7. The judge acknowledged that the usual starting-point for burglary of non-domestic premises is in the order of 2 1/2 years' imprisonment. He noted that the Applicant had been disturbed before he had been able to steal anything, and that the damage which the Applicant had caused had been minimal. However, he regarded two factors as amounting to significant aggravating features in the case. First, the Applicant had taken unusually elaborate steps to prepare for the burglary. They disclosed a high degree of premeditation and cunning, even though there were at the same time features of the case which suggested an extraordinarily amateurish approach. After all, what self-respecting burglar would plan to make good his escape in a taxi? Secondly, the Applicant had still been employed by Delifrance at the time, even though he had been working out his notice, and he had turned the knowledge of the restaurant which he had gained during his employment by Delifrance to his own advantage. To that extent, his crime involved an abuse of the trust which had been placed on him. Those factors caused the judge to take four years' imprisonment as his starting-point.

8. The judge did not think that he could give the Applicant any credit for his clear record which he said was "more than offset" by the fact that the offence had been carried out in abuse of his employer's trust. The judge took the view, though, that the sentence could be reduced to give effect to the fact that, although the Applicant had pleaded not guilty, the issues in the trial were very limited. He reduced the sentence by one year on that account.

The proper starting-point

9. The conventional starting-point of 2 1/2 years' imprisonment for the burglary of non-domestic premises relates to burglaries with no aggravating or mitigating features. Such burglaries will involve a measure of planning, and thus a degree of premeditation and planning is already built into the conventional starting-point. The conventional starting-point can be lowered in the case of the opportunistic burglar, akin perhaps to the sneak thief who walks into an open office to steal whatever he can find. Likewise, the conventional starting-point can be increased in the case of professional criminals who plan their burglaries with meticulous care and steal goods and cash of considerable value. In our opinion, the degree of planning and premeditation in this case was more (though not much more) than normal, and justified a modest increase in the starting-point.

10. Breach of trust is, of course, regarded as an aggravating feature in cases of dishonesty. But it is so regarded because the offender will have abused the trust reposed in him. That trust may have involved an employee being entrusted with his employer's money or valuables, or being placed by his employer in a position whereby the dishonest employee could defraud his employer or his employer's customers or clients. The point is that the offender is, to use the words of Lord Lane CJ in Barrick (1985) 7 Crim App R(S) 142, in a "privileged and trusted" position. It is that position of privilege and trust that he abuses. That is not really this case. The Applicant was not placed in a position of privileged and trust by Delifrance which he abused. His breach of trust, as Stock JA pointed out in the course of argument, involved his use of knowledge about the Delifrance outlet in Worldwide House which he had acquired while working there. We do not wish in any way to belittle that breach of trust, but it is not a breach of trust of the kind to which the phrase normally applies. Thus, although the breach of trust in this case warranted a further enhancement of the starting-point, that increase should only have been modest.

11. Putting these two aggravating features in their proper context, we have concluded that they did not cumulatively justify an enhanced starting-point of four years' imprisonment. We think that they justifed an increase in the starting-point of six months' imprisonment, making the appropriate starting-point one of three years' imprisonment.

The mitigating factors

12. The Applicant was 26 years old at the time of the offence. The psychiatric report on him revealed him to be someone who had become clinically depressed as a result of what he perceived to be his unfair treatment at work. Only a deep-rooted belief that he had been treated unfairly could, we think, have explained why he had resigned from a company for whom he had worked since leaving school and by whom he had been regularly promoted over the years. That depression was described as mild, but it may nevertheless have contributed to the sense of betrayal which the Applicant felt and which caused him to resort to crime. Even if he had been intending to steal from Delifrance, his conduct may have been motivated, not merely by the need to repay his debts, but also by a desire to repay Delifrance for their unfair treatment of him.

13. We do not comment on the extent to which these factors constituted mitigating factors. But we do not agree with the judge that the Applicant's clear record should not have been taken into account on the footing that it was offset by the breach of trust. That would be tantamount to punishing the Applicant twice over for the breach of trust. The fact that the offence was committed by a man of hitherto unimpeachable character, and therefore was totally out of character, was a relevant and significant mitigating factor.

14. On the other hand, we think that the Applicant was a little fortunate to have obtained as much as a 25% reduction in his sentence in view of the limited issues in the trial. It is true that the Applicant never denied that he was guilty of burglary. He simply denied that he was guilty of the particular form of burglary with which he had been charged. But his plea of not guilty (albeit without a denial of guilt in relation to another form of burglary) meant that there had to be a trial. We agree with the judge that this unusual fact justified a reduction in sentence, but not quite to the order of 25%.

15. By what amount, then, should the various mitigating factors which we have identified reduce his sentence from a starting-point of three years' imprisonment? We are not inclined to ascribe a particular percentage discount to each mitigating factor. It is sufficient for us to state that the various factors, taken cumulatively, justify a 25% reduction in the sentence which would otherwise have been imposed.

Conclusion

16. This analysis of the case is not really disputed by the prosecution, because in her helpful submissions Ms Mary Sin accepted that the sentence may warrant interference by an appellate court. For the reasons we have given, the sentence of three years' imprisonment was excessive, based as it was on an excessive starting-point and the failure to take into account at least one relevant mitigating factor. We therefore grant the Applicant leave to appeal against his sentence, we allow the appeal, we set aside the sentence of three years' imprisonment imposed by the judge, and we substitute for it a sentence of two years' and three months' imprisonment.