HKSAR v. YIP KAM FAI

CACC 286/2014

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 286 OF 2014

(ON APPEAL FROM DCCC NO. 593 OF 2014)

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J U D G M E N T

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1. The applicant seeks leave to appeal against the sentence of 24 months’ imprisonment imposed on him on 19 August 2014 by District Court Judge Casewell following his conviction on his plea of guilty of an offence of burglary (Charge 3) on 9 March 2014, together with his co-accused Yip Chi Chun and a person unknown, contrary to section 11(1)(b) and (4) of the Theft Ordinance, Cap. 210. The latter also pleaded guilty to that offence, together with two other burglaries of non-domestic premises committed at different places on 3 and 7 March 2014 respectively.

The facts

2. The applicant accepted a Summary of Facts describing the circumstances of the commission of the burglary and his arrest.  At about 12:50 a.m. on 10 March 2014, a security guard discovered that the roller shutter of the ItaMoMo Café, Kai Tin Shopping Centre, Kwun Tong had been prised open.  Although nothing had been stolen from the restaurant, surveillance cameras installed in the shopping centre depicted three masked men loitering in the vicinity of the restaurant at about 11 p.m. on 9 March 2014.  One of them was seen to prise open the roller shutter with a screwdriver, after which two men entered the restaurant premises.  Having failed to prise loose a safe, the two men were seen leaving the restaurant at about 11:35 p.m.  The applicant and his co-accused were arrested elsewhere in the shopping centre at about the time of the discovery of the fact of the forced entry into the restaurant.  The applicant was found to be in possession of a set of bolt-cutters 24 inches in length, a crowbar 18 inches in length and a pair of gloves.  He was wearing clothing which matched that worn by one of the burglars.

Reasons for sentence

3. In sentencing the applicant and his co-accused the judge noted that the normal starting point taken for sentence for a burglary of non-domestic premises, in the absence of aggravating or mitigating factors, for a person of clear record was 30 months’ imprisonment.  However, he identified aggravating factors in the commission of the burglary committed by the applicant and his co-accused, namely that :

“ …it is an offence involving multiple offenders. Equipment was obtained and used. The object was substantial but was unrealised.”

The judge went on to note that the applicant had “convictions of dishonesty”, whereas his co-accused had convictions of a similar nature.

4. In the result, the judge stipulated a starting point for sentence of 36 months’ imprisonment, which he discounted by one-third to reflect the applicant’s plea of guilty.  Accordingly, he imposed a sentence of 24 months’ imprisonment on the applicant.  The judge stated that he declined to activate a sentence of imprisonment of four months suspended for three years imposed on the applicant on 20 February 2014 for a conviction for possession of dangerous drugs, contrary to section 8(1)(a) and (2) of the Dangerous Drugs Ordinance, Cap. 134, explaining that was for an entirely “separate kind of offending”.

Grounds of Appeal

5. The thrust of the Perfected Grounds of Appeal against Sentence advanced by Ms Karen Cheung on the behalf of the applicant was that the judge had erred in enhancing the starting point taken for sentence by six months’ imprisonment.  He erred in determining that a factor of aggravation in the commission of the offence was that “equipment was obtained and used” and in having regard to the fact that the applicant and his fellow burglars had failed in their attempts to remove the safe from the premises.  Further, given that the co-accused had a much worse criminal record than the applicant, the judge erred in enhancing sentence for both of them for Charge 3 to the same extent, namely six months’ imprisonment.

6. Ms Cheung accepted that the judge had identified correctly the six factors of aggravation in the commission of a non-open domestic burglary , namely:[1]

“ the offence is carefully planned and skilfully executed, involving the use of heavy instruments or equipment; the offence is committed by two or more people; the offences target substantial premises and involve substantial properties; the offender is a professional burglar and not just an opportunist; the offender had previous convictions, particularly previous convictions of a similar nature; and the offender commits multiple offences.”

7. Those factors of aggravation in the commission of the offence were identified in the judgment of this Court delivered by Yeung JA, as Yeung VP was then, in HKSAR v Cheng Wai Kai [2].

8. However, Ms Cheung submitted that the usual starting point taken for sentence for a non-domestic burglary of 30 months’ imprisonment took into account “a degree of premeditation and planning”.[3]  Further, she submitted that the implements in which the applicant had been found to be in possession were not such as to be regarded as a factor of aggravation in the commission of the offence.  Those items were not “heavy equipment”.  Finally, she contended that the judge erred in taking into account as a factor in aggravation of the commission of the offence the failed attempt to remove the safe from the premises.

The respondent’s submissions

9. On behalf of the respondent Mr Daryanani opposes the application for leave to appeal against sentence.  He submitted that the judge was entitled to have regard to the factors of aggravation in the commission of the offence which he identified and that the enhancement of sentence was appropriate.

A consideration of the submissions

10. In sentencing the applicant, the judge did not say that in the commission of the burglary heavy equipment had been used.  It had not.  What the judge said was that he noted that “equipment was obtained and used”.  Entry had been forced to the restaurant premises.  The applicant was found in possession of both a set of bolt-cutters and a crowbar.  Both are implements eminently suitable for use in a burglary.  Also, he had gloves.  Clearly, the judge was entitled to have regard to the fact that the applicant had equipped himself to burgle as an aggravating factor in the commission of the offence.

11. At the hearing of the application the Court viewed the CCTV film of the burglary.  It is to be noted that as soon as the roller shutter was opened and the two men entered the premises, one of them did so wheeling in a trolley which he manoeuvred straightaway to the counter in a switch the safe was housed.  Thereafter, both men said about trying to prise out the safe from its housing.

12. No issue is taken with the judge having regard to the fact that the burglary was committed by multiple offenders.  None could be taken.  Clearly, the judge was entitled to have regard to that fact.

13. Similarly, no issue is taken with the judge having regard to the fact that the applicant had previous criminal convictions.  He had many.  The applicant had been convicted on six previous occasions for the offence of possession of dangerous drugs in the overall period 2004 to 2014.  Furthermore, he had been convicted of seven offences of dishonesty.  In February 2007, he was sentenced to four weeks’ imprisonment for an offence of obtaining property by deception.  In July 2008, for three similar offences, he was sentenced to a total of two years’ imprisonment.  In December 2009, he was sentenced to six months’ imprisonment for an offence of possession of a false instrument.  Finally, in August 2011 he was sentenced to a total of seven months’ imprisonment for two offences of obtaining services by deception.  Whilst the applicant did not have any previous convictions for burglary he had been convicted regularly over a period of five years for offences of dishonesty.

14. Issue was taken with the fact that the judge enhanced sentence for the applicant and his co-accused by the same amount, namely six months’ imprisonment.  Complaint was made that the co-accused had a worse criminal record, including convictions for burglary.  Certainly, the co-accused has many more criminal convictions, three of which were for burglary.  In 1997, he had been sentenced to two years’ imprisonment for burglary.  Then, in 2006 for another offence of burglary he had been sentenced to 14 months’ imprisonment.  Finally, in January 2013 he had been sentenced to 12 months’ imprisonment for a third offence of burglary.  In addition, the co-accused had been sentenced on multiple occasions for offences of theft and on one occasion for robbery.

15. The judge sentenced the co-accused for three offences of burglary of non-domestic premises.  He stipulated a starting point for sentence on Charges 1 and 2 of 42 months’ imprisonment and imposed sentences of 28 months’ imprisonment.  He identified as appropriate an overall starting point of five years’ imprisonment and ordered that 10 months of the term of imprisonment imposed in respect of Charge 2 be served consecutively to the sentence of 28 months’ imprisonment imposed in respect of Charge 1.  Further, he ordered that eight months’ imprisonment of the sentence of imprisonment imposed in respect of Charge 3 be served consecutively to those sentences of imprisonment.  Accordingly, the total sentence imposed on the co-accused was 46 months’ imprisonment.

16. As is obvious, the judge was involved in a quite different sentencing exercise in dealing with the co-accused.  Whilst the co-accused had a worse criminal record than the applicant, that was only one of a number of factors to which the judge had regarding determining the appropriate sentence.  Both the applicant and the co-accused had bad criminal records.

Conclusion

17. I am satisfied that the judge’s approach to sentencing of the applicant was correct and that the sentence of imprisonment imposed on the applicant is entirely appropriate.  There is no merit in the grounds of appeal advanced on his behalf.  Accordingly, I decline to grant leave to appeal against sentence.

[1] Appeal Bundle; page 16 K-P, paragraph 18.

[2] HKSAR v Cheng Wai Kai (CACC 338/2007; unreported, 11 June 2008).

[3] HKSAR v Sim Kam Wah (CACC450/2000; unreported, 30 May 2001).