HKSAR v. HO CHUN YU also known as HO CHUN YIN

CACC 291/2017
[2018] HKCA 90

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 291OF 2017

(ON APPEAL FROM DCCC NO. 406 OF 2017)

____________

___________

________________________

REASONS FOR JUDGMENT

________________________

1.  The applicant sought leave to appeal against the sentence of 26 months’ imprisonment imposed on him on 24 August 2017 by Deputy District Court Judge Amy Chan following his conviction on 17 August 2017, on his plea of guilty to one charge of burglary on 11 July 2016, contrary to section 11(1)(b) and (4) of the Theft Ordinance, Cap. 210. The Particulars of Offence averred that the applicant, together with Wong Kwok Leung (“Wong”) and another person entered private domestic premises as trespassers and stole a safe, which was attached to the wall, and its contents of jewellery, RMB 2,000, personal documents and a mobile telephone. Also, they stole a suitcase. At the hearing, I refused the application and said that I would give my reasons for doing so in due course. That, I do now.

The facts

2.  Ms Lo Pak Nga and her mother Madam Leung Tiu Hung were the occupants of the premises at Room 603, Yat Man House, Ho Man Tin Estate, Kowloon.  They had known Wong for many years, who was a friend of Ms Lo’s late father.  On 11 July 2016, Ms Lo and Madam Leung had left the premises, leaving Wong alone in the premises.

3.  On Ms Lo’s return to the premises at about 22:50 hours, she found the wooden door prised open and damaged.  The flat had been ransacked.  She reported the matter to the police and to Wong.  On her return to the premises Madam Leung discovered that the property particularised in the Particulars of Offence was missing.  The safe had been attached to the wall beneath a dressing table in Madam Leung’s bedroom.

4.  CCTV footage of the rear entrance of the building depicted Wong knocking on the rear door at about 22:17 hours that day.  A man opened the rear door from inside.  Then, Wong and another man, who was pulling a small suitcase with wheels, entered through the rear entrance.  At about 22:38 hours, Wong and a man pulling a heavy, small suitcase with wheels came out of the rear entrance.  Following the arrest of Wong the applicant’s mobile telephone number was found on Wong’s telephone, as a result of which he was placed on a wanted list on 14 July 2016.

5.  On 28 February 2017, the applicant was arrested by police officers.  In a subsequent video‑recorded interview, the applicant admitted that, having agreed to the request by Wong to assist in moving some items, he had arrived in a borrowed car at the Ho Man Tin Estate where he met Wong and another man.  Wong gave him a black plastic bag, which contained a crowbar.  The three men entered the premises through an iron gate and a wooden door, which were unlocked at the time they reached them.  The applicant used the crowbar to prise the safe from the wall and the three men escaped with it down the rear staircase.  They travelled by taxi to the place where the applicant had parked the borrowed car.  They parted company and the applicant retained possession of the safe.  When he learned that Wong had given a statement to the police, the applicant became frightened and threw the safe into the sea.

Mitigation

6.  In written mitigation advanced on behalf of the applicant ^[1], the judge was informed that Wong had pleaded guilty to the charge of burglary and had been sentenced to 2 years’ imprisonment in the District Court on 16 December 2016. ^[2]  It was asserted that Wong was the ringleader, who had inveigled the applicant to come to the scene of the burglary, without having been told that the burglary was to be carried out.  Further, that it was only because the applicant felt under the pressure to continue to help that he had become involved in the burglary.  In oral submissions, Mr Ng asked that the applicant be sentenced to no higher sentence than that imposed on Mr Wong.

Reasons for sentence

7.  In the reasons for sentence, the judge said that the applicant, a man of 34 years of age, had five previous criminal convictions, three of which were for the possession of dangerous drugs, but the judge noted that in 2013 he had been sentenced to 18 months’ imprisonment, having been convicted of going equipped to steal and possession of a false instrument.

8.  Of the circumstances in which the applicant had come to commit the offences, the judge said:^[3]

“ The defendant claimed that he had no knowledge about the burglary when he was first approached by Wong. He thought that he was there to assist Wong in moving the things. I accept that the offence was not carefully planned and he had no knowledge in the first place. I accept that Wong being the mastermind of this offence. However, the defendant decided not to withdraw from the crime even after he knew the full facts. He could blame nobody.”

9.  The judge noted^[4] that it was accepted by Mr Ng Man Kin, who represented the applicant in the lower court, that in HKSAR v Lau Pang [5] this Court said that the starting point for domestic burglary for a full offender of full age was 3 years’ imprisonment.  Having stipulated a starting point for sentence of 3 years’ imprisonment, the judge went on to say:^[6]

“ I find that there is one aggravating factor in this charge, which is the defendant committed the crime with two accomplices, Wong and Ah Hill. They used a crowbar to remove the safe attached to the wall in the bedroom. I find that the starting point needs to be increased to take into account this aggravating factor: see HKSAR v Cheung Wai Kai CACC 338/2007 at §15. I do so by increasing it by 3 months to 3 years and 3 months.”

Sentence

10.  In the result, having afforded the applicant a discount of one‑third from the starting point of 3 years and 3 months’ imprisonment, the judge sentenced the applicant to 26 month’s imprisonment.

Grounds of appeal

11.  Mr James Tze, counsel for the applicant, submitted that the judge failed to consider and/or sufficiently consider the principle of parity of sentence for those who commit the same offence.  Here, unlike the applicant, Wong was the mastermind.  Further, again unlike Wong, the applicant was not in breach of a relationship of trust with Ms Lo and Madam Leung. Also, there was no element of pre‑planning by the applicant.  In those circumstances, it was submitted that the judge had erred in adopting a higher starting point for sentence than that taken in sentencing Wong, namely 3 years’ imprisonment.  That caused a sense of grievance and unfairness in the applicant.

12.  Mr Tze submitted that the judgment of this Court in HKSAR v HUI Sze Ping ^[7] supported the proposition that the proper approach to an argument of disparity in sentencing of defendants by two different judges on different occasions was, first to have regard to whether or not the sentence passed on the applicant was appropriate but, secondly to consider whether a right‑thinking member of the public with full knowledge of the relevant facts and circumstances when learning of the sentence would consider that something had gone wrong with the administration of justice.  It was submitted that, given that the applicant was not the mastermind who had pre‑planned the burglary, the latter would have been the reaction by such a right‑thinking member of the public.

The respondent’s submissions

13.  Ms Christal Chan, for the respondent, submitted that a starting point for sentence of 3 years’ imprisonment for an offence of burglary of domestic premises was well‑established and that in adopting that starting point the judge had acted entirely appropriately.

14.  Further, it was contended that the judge was correct to identify the factors of aggravation, namely that the applicant committed the offence with others and that he had used a crowbar.  The Court was invited to note the judgment of this Court in HKSAR v Cheng Wai Kai ^[8], in which it was stated of the starting point for sentence in non‑domestic burglary that:

“ The starting point can be adjusted upwards if there are aggravating circumstances such as: (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; …”

15.  Of the suggested disparity in the sentences imposed on Wong and the applicant, Ms Chan drew the attention of the Court to the judgment of this Court in HKSAR v Chau Ping ^[9]. There, reference was made to the head note of the judgment of the Court in R v So Hung Lee and Anor ^[10]:

“ Where there was a disparity between sentences passed on the same occasion by the same judge, as in this case, the sentence should be varied only if it could be shown that the judge had not properly apportioned the blame between the accused. If the sentence was otherwise appropriate and the judge was under no misapprehension of the roles of the various accused the sentences should stand. Where different sentences were passed on different occasions by different judges on different accused for the same offences, then the only consideration would be whether the sentence passed on the appellant was appropriate.”

16.  In its judgment in R v So Hung Lee this Court went on to cite with approval a passage from the judgment of the Court of Appeal of England and Wales in R v Stroud, in which Roskill LJ said:^[11]

“ … It is said that there is here such a glaring disparity that this Court ought to interfere in order to remove what is said to be grievance on the part of the appellant Stroud.

  That, as I have already said, involves the proposition where you have one wrong sentence and one right sentence, this Court should produce two wrong sentences.  That is a submission which this Court cannot accept.”

17.  In the result, Ms Chan submitted that the sentence imposed on the applicant in the present case was proper and was not manifestly excessive.

A consideration of the submissions 

18.  Although it is most desirable that, if possible, those involved in a joint enterprise such as the applicant are dealt with at the same time before the same judge, so that there is consistency in sentencing, it is readily understandable why that did not occur in this case.  It was not possible.  Clearly, Wong was arrested by the police soon after the burglary.  He appeared before District Court Judge Gary Lam on 16 December 2016, pleaded guilty and was sentenced.  By contrast, as is apparent from the Summary of Facts, the applicant was not arrested by police officers until 28 February 2017.

19.  Quite properly in mitigating on behalf of the applicant, Mr Ng drew the judge’s attention to the fact that Wong had been dealt with and sentenced to 2 years’ imprisonment.  Also, again quite properly, he drew the judge’s attention to the judgment of this Court in HKSAR v Cheng Wai Kai, in which factors of aggravation in commission of a non‑domestic burglary were enumerated.  Quite obviously, those factors were also relevant to the offence of burglary of domestic premises.  As a result, there ensued an interchange between the judge and the applicant’s solicitor as to the applicability of the first two of those factors, namely:

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

(2) the offence is committed by 2 or more persons.”

20.  Mr Ng’s submission that there had been no element of careful planning, because the applicant arrived at the scene without knowing that there was to be a burglary, was accepted by the judge in terms in her reasons for sentence.  However, his submission that the same point dealt with the second aggravating factor was not accepted by the judge.  Understandably so.  Knowing that there were to be three burglars, he had participated in the burglary.

21.  The judge’s enhancement of the starting point taken for sentence to reflect the factor of aggravation in the commission of the offence was modest.  As Ms Chan pointed out, the three‑month increase of the starting point from 36 months’ imprisonment represented an increase of about eight percent.  It is quite clear, although she did not state so expressly, that the judge stipulated that enhancement of sentence for the applicant in the full knowledge of the starting point taken for sentence in Wong’s case and, in particular, that the judge in that case did not even advert to an enhancement of sentence.

22.  In determining the appropriate sentence to be imposed on the applicant, the judge was entitled to enhance the starting point taken for sentence for the reasons that she gave.  Indeed, it has not been submitted that she was not entitled to do that.  Rather, it has been contended that, having regard to the sentence imposed on Wong, in her discretion she ought not to have done so.

23.  As Ms Chan pointed out, in cases where defendants charged with the same offence have been dealt with by different judges on different occasions and a submission is made on appeal as to the disparity of the sentences imposed on the applicant, the issue for the court is whether or not the sentence imposed on the applicant is appropriate.  That is the general principle that would apply save in the most exceptional circumstances.  That was the effect of the judgment of this Court in HKSAR v Leung Yiu Ming ^[12], in which having referred to the judgment of this Court in R v So Hung Lee & Another Nazareth VP said:^[13]

“ In such a case, the Court held that the only consideration must be whether the sentence passed on the appellant or applicant was appropriate, following the approach of Roskill LJ (as he then was) in R v Stroud (1977) 65 Cr App R 150 at p. 152.”

24.  Having stated that the sentences imposed on the applicants were “well within the relevant guidelines” Nazareth VP went on to note:^[14]

“ However, it can be seen from p. 154 of R v Stroud that what it restated was in the nature of a general principle that would apply save in the “most exceptional circumstances”.”

25.  As an example of “most exceptional circumstances”, such that a right thinking member of the public would consider that something gone wrong with the administration of justice, Ms Chan invited the Court’s attention to the judgment of the Court of Appeal of England and Wales in R v Fawcett.^[15] There, the disparity of the sentence imposed on the defendants was 2 years and 3 months’ imprisonment.  In that case, there were four defendants.  Three of the defendants were sentenced on their pleas of guilty by Hallam J in June 1982.  Chatterton, Simon and Kenneth Fawcett pleaded guilty to the robbery of members of staff of a petrol station and to the burglary later the same night of a jewellery store. Chatterton also pleaded guilty to the robbery of a credit agent, which robbery he committed with Hardwick. Chatterton was sentenced to 2 years’ imprisonment for each of the robberies and 9 months’ imprisonment for the burglary, all of which sentences were ordered to be served consecutively.

26.  Hardwick was tried by Judge Herrod and a jury in July 1982 on the same two counts of robbery and the count of burglary to which Chatterton had pleaded guilty.  Having been found guilty by the jury of the robbery of the credit agent, he pleaded guilty to the robbery of the members of staff of the petrol station.  No verdict was returned with regard to the burglary of the jewellery shop.  Hardwick was sentenced to a total of 2½ years’ imprisonment.  So, not having pleaded guilty to one of the two robberies, but having been found guilty of the other only after trial, he was sentenced to a significantly lesser total sentence of imprisonment than Chatterton.

27.  Having noted of their criminal records that “there is nothing to choose between them at all” Lawton LJ said “we have no hesitation at all in saying that the sentences… on Hardwick were inadequate.  Hardwick should have received much more severe sentences than he did.”

28.  Nevertheless, in those circumstances, he went on to say that a right thinking member of the public would have said “something had gone wrong here because Hardwick and Chatterton should clearly have received the same sentences.”  In the result, the court determined that it was necessary to allow the appeal of Chatterton, quash the sentence of 4 years and 9 months’ imprisonment and substitute a total sentence of 2 years and 6 months’ imprisonment, namely same total sentence as Hardwick.

29.  Obviously, the circumstances of this applicant are wholly different.  There is no question whatsoever of most exceptional circumstances arising in his case.

Conclusion

30.  For those reasons, being satisfied that there were no reasonably arguable grounds of appeal against sentence, I refused the application for leave to appeal.

[1] Appeal Bundle, pages 20-23.

[2] HKSAR v Wong Kwok Leung (DCCC 864/2016).

[3] Reasons for sentence, paragraph 24.

[4] Reasons for sentence, paragraph 21.

[5] HKSAR v Lau Pang [2004] 3 HKLRD 565.

[6] Reasons for sentence, paragraph 25.

[7] HKSAR v HUI Sze Ping (CACC 426/2002; unreported, 26 February 2003.) See paragraphs 18-22.

[8] HKSAR v Cheng Wai Kai (CACC 338/2007 and CACC 339/2007; unreported; 29 May 2008), at paragraph 15.

[9] HKSAR v Chau Ping (CACC 2/2013; unreported, 8 January 2014).

[10] R v So Hung Lee and Anor [1986] HKLR 1049.

[11] R v Stroud (1977) 65 Cr App R 150, at page 152.

[12] HKSAR v Leung Yiu Ming [2000] 1 HKLRD 247.

[13] HKSAR v Leung Yiu Ming, page 249 E-F.

[14] HKSAR v Leung Yiu Ming, page 249 F-G.

[15] R v Fawcett (1983) 5 Cr App R (S) 158.