HKSAR v. WONG CHI WING

[English Translation – 英譯本]

CACC 17/2014

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 17 OF 2014

(ON APPEAL FROM DCCC NO. 1004 OF 2013)

________________

REASONS FOR JUDGMENT

Hon Poon J (giving the reasons for judgment of the Court):

Introduction

1.  The applicant pleaded guilty to four charges before District Judge Eddie Yip (“trial judge”):

(1) Theft, contrary to section 9 of the Theft Ordinance, Cap 210;

(2) Theft, contrary to section 9 of the Theft Ordinance, Cap 210;

(3) Burglary, contrary to section 11(1)(b) and (4) of the Theft Ordinance, Cap 210;

(4) Failing to surrender to custody (as shall have been appointed by a court) without reasonable cause, contrary to section 9L and (3) of the Criminal Procedure Ordinance, Cap 221.

2.  The applicant was sentenced to a total of 36 months’ imprisonment by the trial judge.  He contended that it was excessive and applied for leave to appeal against sentence.

3.  On 2 Sep 2014, we granted leave to appeal after the hearing of the application and treated this application as the appeal proper.  We allowed the appeal and reduced his sentence to 30 months. The following are our reasons for judgment.

Facts

4.  The applicant agreed to the following facts.

The first charge

5.  On 3 November 2011, PW1 delivered 21 boxes of electronic components to Proficient Industrial Center at 6 Wang Kwun Road, Kowloon Bay. The address of the recipient was Hong Kong Pui Kai Logistics Control Center at Block A, 6/F of the building.  PW1 used a handcart to push those 21 boxes of goods to the entrance of the godown from the loading/unloading area, then he went to the office at room 609 himself for registration.  When he moved the goods into the godown several minutes later, he found that two pieces [value at US$ 1,100.00] were missing, so he called the police.  The closed-circuit television of that building was able to capture and record the applicant, together with another male, stealing those two pieces of goods from the handcart at 2:47 pm.

The second charge

6.  At 3:45 pm on 10 November 2011, PW3 delivered more than one hundred pieces of goods to the loading/unloading area of Area A, Proficient Industrial Center, 6 Wang Kwun Road.  He opened the tailboard of the vehicle and started delivering the goods.  After he had finished delivering the hundred odd pieces of goods, he found that two of the three cartons of SAMSUNG electronic goods left on the truck had gone missing.  Then he informed the company to report the matter to the police.  The closed-circuit television overlooking the loading/unloading area of Area A was able to capture and record the applicant stealing those two cartons of goods at 4:28 pm [value at HK$ 126,672.00].

The third charge

7.  On 24 November 2011, PW4 [surnamed Lam, working for Triple Electronic (HK) Ltd. as a warehouse attendant] put 3 boxes of electronic components [value at US$ 3,325.60] into a carton and handed it to PW5 [surnamed Kwok, working for DHL as a courier] for delivery to a Korean client.  PW5 went on picking up goods.  At 4:25 pm on the same day, PW5 left the handcart, which was fully loaded with goods pending express delivery, in the lift lobby at 6/F, Hope Sea Industrial Center, 26 Lam Hing Street, Kowloon Bay and went on picking up goods.  The closed-circuit television of that building was able to capture and record the applicant, after stealing that carton of goods, taking the no.6 staircase to walk away from the building to the rear alley and then making a turn towards Lam Hing Street.

Arrest

8.  Police officers were conducting anti-crime patrol in plainclothes in Kwun Tong area on 24 November 2011.  At 4:16 pm on the same day, police officer(s) saw the applicant walking out to Lam Hing Street along an alley between Hope Sea Industrial Center and Lam Hing Street sitting-out area.  At that time, the applicant, who was holding that carton of goods with both hands, flagged down a taxi, placed that carton of goods on the rear seat and then got on the taxi.  Police officer(s) intercepted the taxi, arrested the applicant and seized that carton of goods.  Later the applicant admitted having committed the first to the third charge.

The fourth charge

9.  On 2 December 2011, the applicant appeared in the Kwun Tong Magistrates’ Courts in respect of the first to the third charge. The Court adjourned the case to 28 December 2011, when the applicant had to appear in court on that day, and granted bail to him.  However, the applicant was absent on 28 December 2011 without reasonable cause.  The Court thus issued a warrant of arrest.

10.  The applicant surrendered himself on 25 September 2013 and was arrested by the police.

The applicant’s background and mitigation

11.  The applicant, aged 22, was educated up to Form 1.  He has four conviction records including assaulting a police officer, behaving in a disorderly manner while drunk and possession of a dangerous drug.

12.  The applicant claimed that he had been out of job since 2011, he was therefore persuaded by another male in the same case to commit the offences.  Having been successful in respect of the first two charges, he was given HK$4,000.00 in total as reward by that male.  He knew the purpose was to steal before he entered those industrial premises.

Sentence

13.  The trial judge said the following when he passed the sentence:

“10. Based on the sentencing guidelines given by the Court of Appeal on burglary, for a first offender who enters a non-domestic premises and steals therein a starting point of 30 months’ imprisonment shall apply (R v Wong Man [1993]1 HKC 80; HKSAR v Sim Ka-wing, CACC 450/2000).

Sentence of the present case

11. Although the first two charges are thefts instead of burglaries the facts show that the defendant entered the industrial buildings as a trespasser and stole therein.  I am of the view that he was not an opportunist thief out of momentary greed, it was in fact clear to him before entering those premises that the purpose was for stealing.  His culpability is no different from burglary.  The aggravating factor of the first and second charges is that the defendant conspired with another person to commit the offences.  The additional aggravating factor of the second charge is that the value of the stolen goods is as high as HK$ 126,672.00.

12. The starting points of the respective charges are as follows:

(1) The first charge, 33 months;

(2) The second charge, 36 months;

(3) The third charge, 30 months;

(4) The fourth charge, 6 months.

13. The defendant is entitled to a one-third discount for his guilty plea, and he has no other mitigating factors.  The sentences imposed upon him after discount are as follows:

(1) The first charge, 22 months;

(2) The second charge, 24 months;

(3) The third charge, 20 months;

(4) The fourth charge, 4 months.

As the charges did not arise from the same incident, the terms should be served consecutively.  Taking into account the totality of sentence, I have made adjustments as follows:

(1) The second charge, 24 months, to be served in full;

(2) The first charge, 4 months of the 22 months to run consecutively with other sentences;

(3) The third charge, 4 months of the 20 months to run consecutively with other sentences;

(4) The fourth charge, 4 months, to be served in full.

15.  The total sentence is 36 months."

Grounds of appeal

14. The applicant had no objection in respect of the sentences of the third and fourth charges, but he contended that the sentences of the first and second charges were manifestly excessive.  The main ground was that the trial judge erred in adopting the starting point for burglary of non-domestic premises, resulting in manifestly excessive sentences for those charges.  Also, although the applicant had already made full confession to the police in respect of all the charges, the trial judge was wrong to consider that he should not be entitled to some extra discount even when the prosecution evidence against him was not that strong.  Furthermore, the trial judge had neglected or had not fully taken account of the fact that the offences were not orchestrated or well-planned, the applicant was not equipped with any burglary tools, and he did not commit the offence by any means of deception, it was just a very simple or opportunistic theft.  Therefore, in view of all the circumstances of this case, the sentences were manifestly severe and excessive.

15. The respondent’s position was that the trial judge clearly understood the sentences he imposed on the first and second charges were based on theft, he only compared the facts with those of burglaries and took the view that the culpability of these two charges was more or less on a par with that of burglary.  Therefore, there was nothing improper in adopting a starting point of 30 months.

Discussion

Starting point

16.  In HKSAR v Cheng Sau Yuk [2012] 5 HKLRD 415, this Court pointed out there were infinite circumstances in which theft could be committed and for that reason, the Court of Appeal had not laid down any sentencing guidelines and each case had to be examined on the facts of its own.  Sentences imposed in other similar cases might not be particularly helpful.

17.  Although there is no sentencing guideline for theft, the sentencing judge has the duty to consider all the circumstances of the case in order to determine an appropriate starting point.  If the facts are more or less on a par and the defendant is facing the lesser offence of theft rather than burglary, which involves a higher degree of criminality, the general principle is that he should receive a sentence less than the one imposed in burglary.  Miss Winnie Mok, the Public Prosecutor who represented the respondent, also agreed to this point.

18.  In the present case, the facts of the first and second charges are similar to the one of a burglary case, and it was a premeditated act of the appellant to steal at the scene, the case is therefore not a petty one.  Be that as it may, the appellant was charged with and convicted of theft, involving a lower degree of criminality.  We are of the view that adopting a starting point of 30 months’ imprisonment imposed in burglary cases was manifestly excessive.  The appropriate starting point should be 24 months.

19.  We agree it is an aggravating factor that the appellant conspired with another person to commit the first and second offences, thus it was reasonable for the trial judge to enhance the sentence by 3 months.  We also agree that the value of the property involved in the second charge is higher, it was therefore also reasonable for the trial judge to enhance the sentence by 3 months.

20.  Accordingly, the starting points for the first and second charges are respectively (24+3=) 27 months and (24+3+3=) 30 months.

Discount

21.  The applicant complained that the trial judge had erred in failing to give further discount in sentence because had he not frankly confessed and pleaded guilty to the first and second charges, the prosecution might not have enough evidence to link him to the offences. Actually, we have rejected grounds of appeal of this kind before: see HKSAR v Ma Ming [2013] 1 HKLRD 806 and HKSAR v Lai Fu Hing CACC 388/2013 (unreported, 23 May 2014).

22.  In this case, the closed-circuit television was able to capture the course of the appellant committing the offence, and he made full confession to all the offences to the police.  In giving the one-third discount to the appellant, the trial judge had taken into account the appellant’s cooperation with the police, voluntary confession and the guilty plea entered in court.  The appellant shall not be given any further discount.

23.  After the one-third deduction, the respective sentences are:

(1) The first charge – 18 months;

(2) The second charge – 20 months;

(3) The third charge – 20 months;

(4) The fourth charge – 4 months.

Totality

24.  The appellant was under the age of 21 at the time of the offence, and he has no similar previous conviction.  In ordering part of the sentence to run consecutively, the trial judge did not consider these factors and make appropriate adjustments.  As a result, the total sentence of 36 months he gave was manifestly excessive.

25.  We are of the view that the proper total sentence should be:

(1) The 20 months of the third charge to be served in full;

(2) 3 months of the 18 months of the first charge to run consecutively;

(3) 3 months of the 20 months of the second charge to run consecutively;

(4) The 4 months of the fourth charge to be served in full.

In other words, the total sentence should be 30 months.

Conclusion

26.  Accordingly, we grant the applicant’s application for leave to appeal and, treating his application as the appeal proper, allow the appeal and reduce the terms of imprisonment to 30 months.

Translated by the Judgment Translation Unit of the Judiciary and vetted by Mr P.Y. Lo, Barrister-at-law