HKSAR v. LAU BING

CACC138/2008

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 138 OF 2008

(ON APPEAL FROM DCCC 79 OF 2008)

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J U D G M E N T

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Saw J (giving the judgment of the Court) :

Introduction

1. On 20 March 2008 the applicant pleaded guilty to five charges of burglary, namely charges 2, 5, 7, 8 and 9, contrary to section 11(1)(b) and (4) of the Theft Ordinance, Cap. 210.  He also pleaded guilty to one charge of remaining in Hong Kong without the authority of the Director of Immigration, charge 10, contrary to section 38(1)(b) of the Immigration Ordinance, Cap. 115.  Charges 1, 3, 4 and 6, which were also charges of burglary, were left on the court file.  He was sentenced by Deputy Judge W. Lam to be imprisoned for a total period of 6 years and 2 months.

2. This is an application for leave to appeal sentence.

The facts

3. The summary of facts admitted by the applicant revealed that each of the five charges of burglary were committed at domestic premises.  In the case of three of the burglaries they were committed at night when the occupiers of the premises were asleep indoors.

4. Charge 2 was a burglary which took place between 23 and 24 October 2003 at premises at Cheung Sha on Lantau Island.  The occupants of this property were asleep at the time.  Property valued in excess of $68,000 was stolen.

5. Charge 5 was a burglary which took place on 17 March 2004 at premises at Pui O on Lantau Island.  The burglary took place at about 4 a.m.  The applicant was disturbed by one of the occupants and fled the scene taking with him property valued at $49,000.

6. Charge 7 was a burglary which took place between 4and 5 September 2006 at Cheung Sha Wan in Kowloon.  The sole occupant of the premises, a woman, was present and asleep at the time.  Cash and property in the sum of $57,300 was stolen.

7. Charge 8 was a burglary which took place on 29 October 2007 at premises at Ma Wan, Tsing Yi, in the New Territories.  This was a flat on the 10^th floor.  The occupants returned home late in the evening to find that the premises had been burgled and property in the sum of $72,700 had been stolen.

8. Charge 9 was a burglary which took place between 7 October and 4 November 2007 at premises at Ma Wan, Tsing Yi, in the New Territories.  This was a flat on the 11^th floor of the same building as the premises the applicant had burgled on 29 October 2007.  Jewellery and cash in the sum of $28,000 was taken.

9. Jewellery taken from the two Tsing Yi premises was recovered when the applicant was arrested on 30 October 2007.  The applicant was, on that day, apprehended in Sha Tau Kok.  He had no right to be in Hong Kong and was charged with the offence of remaining in Hong Kong having entered illegally, which was charge 10.

The sentences

10. The judge took a starting point of 36 months for each of the burglary charges.  He observed that in each case the premises burgled were domestic premises and that the Court of Appeal guidelines for sentence recommended a starting point for sentence of 36 months’ imprisonment.  The judge reduced this to 24 months on each charge to reflect the applicant’s pleas of guilty, so that he imposed for each offence a sentence of 24 months’ imprisonment.

11. To take account of the principles of totality, the judge ordered that 10 months of the sentence for charges 5, 7, 8 and 9 were each to be served consecutively to the sentence on charge 2 and one to the other.  This resulted in a total sentence for the five burglary charges of 64 months’ imprisonment.

12. For the charge of illegally remaining in Hong Kong without authority the judge took a starting point of 33 months which he reduced to 22 months to reflect the applicant’s plea of guilty.  He was alert to the fact that the guidelines laid down in The Queen v. So Man King [1989] 1 HKLR 142 recommend a sentence of 15 months’ imprisonment when an accused pleads guilty.  The judge however increased that term in the instant case to 22 months’ imprisonment to reflect the fact that the applicant had been convicted of that very same offence on four previous occasions and had on each of those occasions been sentenced to terms of imprisonment.  The judge ordered that 10 months of the 22 months should be served consecutive with the other sentences.  This resulted in a total sentence of 74 months’ imprisonment.

The application

13. The applicant submits to us today and in earlier letters written to this court that the total sentence is manifestly excessive when compared with sentences imposed on other prisoners for similar offences.  However no particular cases or references have been provided.

14. It is clear to us that the approach taken by the judge to the individual starting points for sentence and the discounts given for the applicant’s pleas of guilty and his mitigation, such as it was, cannot be criticised.

15. The applicant has committed very serious offences spanning a period of 4 years. 

16. Mr Zervos, SC, on behalf of the respondent, observed that the totality of 5 years and 4 months’ imprisonment for five domestic burglaries involving property in the value of more than $275,741 could not be described as manifestly excessive.  We agree.  If anything the overall length of the sentence might be described as being on the light side as a consecutive sentence of 15 months’ imprisonment is usually imposed on the charge of remaining in Hong Kong without authority.  This being said a meaningful discount has to be given by the judge so that there is no criticism made of him for the course he adopted.

17. In the case of the sentence for illegal remaining it is apparent from the authorities referred to by the judge that an increase in sentence from 15 months’ imprisonment was wholly justified as this applicant was a repeat offender. 

18. The only issue in the application is whether or not the end result of 74 months’ imprisonment is manifestly excessive.  We do not consider that it is.  The applicant has on a number of previous occasions entered Hong Kong illegally for the express purpose of committing crime, including burglary and theft which is reflected in his criminal record. 

19. The application is dismissed.