HKSAR v. HUI WING CHIU

CACC 365/2010

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 365 OF 2010

(ON APPEAL FROM DCCC NO. 172 OF 2010)

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BETWEEN

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REASONS FOR JUDGMENT

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Hon Fok JA (giving the Reasons for Judgment of the Court):

Introduction

1.  The applicant was charged with three counts of burglary contrary to section 11(1)(b) and (4) of the Theft Ordinance (Cap. 210), to which he pleaded not guilty.  After trial before Deputy District Judge Dufton, he was convicted, on 27 September 2010, on the first and third charges and acquitted on the second charge.

2.  On 28 September 2010, the Judge sentenced the applicant to 2 years and 6 months’ imprisonment on each of the first and third charges and ordered that 1 year and 3 months of the sentence on the third charge run consecutively to the sentence on the first charge, making a total sentence of 3 years and 9 months’ imprisonment.

3.  The applicant sought leave to appeal against conviction and sentence.  On the latter application, the applicant was granted legal aid and so was represented before us by Mr H Y Wong.  The applicant was refused legal aid for his application for leave to appeal against conviction and so he acted in person before us on that application.

4.  At the conclusion of the hearing, we dismissed both applications, indicating that we would hand down our reasons at a later date, which we now do.

The facts

5.  The particulars of offence in respect of the first charge were that the applicant, on 4 June 2009, in Hong Kong, having entered as a trespasser part of the building known as the office of Societe Generale Corporate & Investment Banking, 37^th Floor, Three Pacific Place, No. 1 Queen’s Road East, Wanchai, stole therein nine boxes of printer cartridges.

6.  The particulars of offence in respect of the third charge were that the applicant, on 23 June 2009, in Hong Kong, entered as a trespasser part of the building known as the office of Calyon Credit Agricole CIB, 26^th Floor, Two Pacific Place, No. 88 Queensway, Central, with intent to steal therein.

7.  In summary, it was the prosecution case on the first charge that the applicant had entered the Societe Generale offices at Three Pacific Place on 4 June 2009 by following a staff member into those offices from which he then stole nine new printer cartridges and then left, his entry and exit from the offices being captured on CCTV footage.  The value of the printer cartridges was HK$13,424.  On the third charge, it was the prosecution case that the applicant had entered the Calyon offices on 23 June 2009, again by following a staff member into the offices, intending to steal printer cartridges there but that he was discovered by staff of Calyon who challenged his presence and took down his particulars.

8.  The defence case, in summary, was that the defendant had gone on 4 June 2009 to the offices of Societe Generale in the course of his recycling business called Pro Services to collect nine printer cartridges for recycling.  The applicant maintained that he paid Societe Generale the sum of HK$270 for the nine printer charges.  As regards the incident on 23 June 2009, the defence case was that a person from Calyon, called Patrick, telephoned the applicant to collect five to eight printer cartridges and this was what the applicant was doing when he was discovered at the Calyon offices.

9.  The Judge rejected the defence case in respect of both the first and third charge.

10.  On the first charge, the Judge was sure that the applicant was the person shown in the CCTV footage and that the only inference he could draw was that the applicant entered as a trespasser and stole the nine printer cartridges having taken into account, amongst other things, the following facts, namely that:

(1)   access to the Societe Generale offices was by way of staff card;

(2)   the applicant was not employed by Societe Generale;

(3)   the applicant was seen entering the Societe Generale offices by following a staff member in and then walking in the opposite direction;

(4)   the applicant was pushing a trolley on top of which was another bag;

(5)   when the applicant left the bags were full and the applicant was carrying a third bag on his back, which was also full;

(6)   the printer cartridges were all brand-new and unopened;

(7)   PW1 (who was responsible for ordering new printer cartridges for the Acquisition & Leverage Finance Department) and PW2 (who was the manager of the Administrative Department) did not know the applicant and had never heard of Pro Services;

(8)   no one contacted PW1 to collect used printer cartridges; and

(9)   PW2 did not authorise the applicant to take away the printer cartridges.

11.  The Judge was also satisfied that full weight was to be attached to the admission in a video interview (exhibit P19) that the applicant committed this burglary.

12.  On the third charge, the Judge was sure that the only inference he could draw was that the applicant entered as a trespasser with intent to steal new printer cartridges having taken into account, amongst other things, the following facts, namely that:

(1)   access to the Calyon offices was by way of staff card;

(2)   the applicant was not a member of staff of Calyon;

(3)   the applicant was not permitted to enter Calyon’s offices;

(4)   the applicant was seen with two printer cartridges in his cloth bag (these being valued at HK$2,740);

(5)   the printer cartridges were all brand-new and unopened;

(6)   stickers (with the words “EXPRIED/RETURN” (sic)) were seen on three boxes, which stickers were not used by Calyon;

(7)   PW4 (who was an executive director of Calyon) and PW6 (a member of the Administrative Department of Calyon) had never heard of Pro Services and did not know the applicant; and

(8)   PW6 did not ask anyone from Pro Services to take away the printer cartridges.

The appeal against conviction

13.  In view of the evidence against him summarised above, including his admission of the first burglary, it is perhaps not surprising that the applicant was refused legal aid for the purposes of his application for leave to appeal against conviction.  Since he was not represented on the application for leave to appeal against conviction, the only grounds of appeal were those settled by the applicant himself on his Notice of Application for Leave to appeal (Form XI).  Eight grounds of appeal were there set out in respect of the proposed appeal against conviction.

14.  The first ground of appeal asserted is “Innocence (supported with invoice(s) and receipt(s)”.

15.  In the course of his evidence, the applicant produced six exhibits, which were marked D1 to D6.  Exhibit D3 related to the second charge, of which he was acquitted, and need not be considered.  So far as the other exhibits are concerned, the Judge addressed those relating to the first charge in his Reasons for Verdict, as follows:

“48. I have no hesitation in rejecting the defendant’s evidence he was given exhibit D1 by SG, SG keeping the original. In cross-examination the defendant said that D1 was filled out by SG, there being none of his handwriting on the document. The defendant explained this document would be sent out together with advertisement handbills and was therefore not surprised if the document had already been filled in. The defendant said he could not remember who contacted him from SG and to whom he paid the $270, notwithstanding he kept all contact details in his notebook. I do not find this evidence credible. This evidence is contrived in an attempt to overcome the fact that no contact person is named on exhibit D1, only the department. Conveniently the notebook (a sample of which the defendant produced as exhibit D6) was used up and thrown away.

49. … Further I find inherently improbable that PW10 when searching the defendant’s home would not have located exhibit D1 if it was in his home, in particular considering the police were conducting the search in relation to printer cartridges.  I accept the evidence of PW10 that he looked for documents relating to the case but did not see any documents like exhibit D1.”

16.  As to the third charge, the Judge addressed the exhibits relating to that in his Reasons for Verdict, as follows:

“74. The defence produced exhibit D2 in support that the defendant went to Calyon to collect printer cartridges for recycling. In cross-examination the defendant said that D2 was posted to him. D2 was already filled in, except the two handwritten lines in the middle, which the defendant wrote. It is to be noted that these two lines written by the defendant state this is a quote and not a receipt. I have no hesitation in rejecting the defendant’s evidence D2 was sent to him by post.

75. I accept the evidence of PW4 that the name seen on the chop ‘CREDIT AGRICOLE CORPORATE AND INVESTMENT BANK H.K.’ was not used by the bank in June of last year. The name used at that time was Calyon or Calyon CIB. Only on the 8^th of February this year was the name of the bank changed to Credit Agricole CIB, with Calyon no longer being used. Similarly the web address shown on D1 [NOTE: this is clearly a typographical mistake and should refer to D2], Ca-cib.com was also not used by the bank until February this year.

76. I find the defendant’s evidence was again entirely contrived in an attempt to try [to] overcome the fact that the chop could not possibly have been put on in June of last year and likewise the web address. Not surprisingly therefore the defendant was unable to say when he received D2, other than to say sometime after 23 June 2009. The evidence that D2 was already filled in also conveniently seeks to overcome the fact that for contact person only Calyon was written and not Patrick, who the defendants had called him. I do not find the defendant’s evidence credible. Further I do not find credible that a document like D2 would be sent in the post by Calyon to Pro Services, in particular considering there was no transaction between them.

77. As noted earlier, in respect of exhibit D1, the defendant explained this document would be sent out together with advertisement handbills (see paragraph 48).  In cross-examination the defendant said he printed the stickers with the words ‘EXPRIED/RETURN’ (exhibit P11), which were also sent together with advertisement bills.  I do not find credible documents like D2 and exhibit P11 would be sent together with advertisement bills touting for business.”

17.  The Judge also dealt with exhibits produced by the applicant to support the existence of his legitimate printer cartridge recycling business, as follows:

“86. In reaching my verdict I have carefully considered everything said by [counsel for the applicant], including that the defendant ran a legitimate business of recycling as shown by the documentation submitted to court. Of the five ring binder files (exhibits D4 and D5), I note only one of D4, the blue one, relates to business prior to the arrest of the defendant. The fact the defendant may have run a recycling business to a number of years does not cause me to doubt the findings I have made. Nor does the fact that defendant was bold enough to steal printer cartridges in the presence of bank staff. Clearly the defendant picked lunchtime, because this was likely to be the least busy time and that if questioned about what he was doing he would show his name card in an attempt to try [to] pass off he was collecting printer cartridges for recycling, just as happened when questioned by PW4. Similarly the defendant had the stickers ‘EXPRIED/RETURN’ (exhibit P11), with him so as to try [to] pass off new printer cartridges as old ones.”

18.  As can be seen from the passages quoted above, the Judge clearly considered the defence exhibits that were produced and gave clear and cogent reasons for his decision to reject them.  There is no merit in this proposed ground of appeal.

19.  The second ground of appeal asserted is “Fabrication (the statement was made under the Police’s coercion and inducement)”.

20.  This refers to the question, addressed by the Judge, of the admissibility of a written record of interview of the applicant (exhibit P15), an oral statement attributed to the defendant and the subsequent post recording (exhibit P17) and a video interview (exhibit P19).  The Judge considered the admissibility of these exhibits in a voir dire (see paragraphs 12 to 19 of the Reasons for Verdict) and gave his reasons for ruling them to be admissible (see paragraphs 20 to 36 of the Reasons for Verdict).

21.  Having considered those paragraphs of the Reasons for Verdict, we consider that the Judge’s ruling of admissibility was consistent with the evidence before him and that he was right to reject the applicant’s allegation of fabrication.  There is no merit in this proposed ground of appeal.

22.  The third ground of appeal asserted is “Lack of objectivity (failed to verify the ‘stamped’ invoice(s) and receipt(s) of the victim company)”.

23.  This is simply another way of asserting the first ground of appeal and, for the reasons given above, this ground of appeal is without merit.

24.  The fourth ground of appeal asserted is “Inconsistency of evidence given by the prosecution witness(es) (the company of the other party never testified for me but to hide the truth)”.

25.  The alleged inconsistency in the evidence of the prosecution witnesses is not identified in the grounds of appeal.  In 22, 23 and 29 of the Reasons for Verdict, the Judge referred to three apparent inconsistencies relating to the issue of admissibility of the evidence on the voir dire.  In each case, the Judge set out and resolved the apparent discrepancy.  We can see no reason to interfere with his conclusions in this regard and we see no merit in this proposed ground of appeal.  The applicant did not identify any other inconsistencies of evidence that would be relevant to this ground of appeal.

26.  The fifth ground of appeal asserted is “Non-compliance with procedures by the Police (the arrested person’s rights to be given notice and retain a lawyer were deprived of)”.

27.  So far as the giving of notice is concerned, the Judge addressed this in his Reasons for Verdict as follows:

“28. I was satisfied that PW9 had the right to question the defendant under Rule I of the Rules and Directions for Questioning Suspects and Taking Statements and that he properly administered a caution as required by Rule II when the defendant said he had committed other offences. It is important to note the reply of the defendant was not to any specific offence and that prior to the post record and the subsequent video interview the defendant had been made aware of his rights are a notice to persons in custody having been served prior to both the post record and a video interview (exhibits P16 and P18). The defendant was also further cautioned at the commencement of the video interview.”

28.  Further, in exhibit P19b (a translation of the transcript of exhibit P19, the video interview), the applicant confirmed at the outset that he had “again” been issued a notice to detain persons (items 11 and 12).

29.  So far as the allegation that the applicant was deprived of the right to retain a lawyer, the transcript of the video interview shows that the applicant responded, “No need”, when asked if he required one to accompany him during the video interview (items 13 and 14).

30.  For these reasons, there is no merit in this proposed ground of appeal.

31.  The sixth ground of appeal asserted is “Biased judge (who had prejudice against small companies and small-sized enterprises but in favour of the Police, benefit of doubt thus did not go to the defendant)”.

32.  Nothing in the Judge’s Reasons for Verdict demonstrates any such alleged bias and we see no merit in this proposed ground of appeal.

33.  The seventh ground of appeal asserted is “My legal representative could not present my case, nor did he summons all staff members of the company of the other party to testify in court”.

34.  In the face of this proposed ground of appeal, counsel who appeared for the applicant at the trial was invited to make an affirmation responding to it.  He duly filed an affirmation dated 17 March 2011.  In the light of the contents of that affirmation, we consider there is no merit in this proposed ground of appeal.

35.  The eighth ground of appeal asserted is “If Chinese was elected to be the language of the trial, I am sure I could defend myself.  My speech and comprehension were hindered by the use of English in trial hearing.”

36.  The applicant was represented by counsel conversant in both Chinese and English at the trial.  He elected to testify in Chinese and there is no suggestion that his evidence and that of the other witnesses testifying in Chinese was not properly translated into English for the benefit of the Judge.  There is no merit in this proposed ground of appeal.

37.  In addition to the above grounds of appeal, we have also considered a letter from the applicant dated 5 June 2011 and addressed to the Registrar of the High Court.  The purpose of that letter (of which we have been provided with a translation) appears to be an invitation to this court to reconsider the applicant’s application for legal aid, for the release of transcripts and for bail pending appeal.  As such, it is not directly relevant to the application for leave to appeal against conviction.  However, we have considered that letter insofar as it seeks to summarise the grounds of appeal intended to be relied upon by the applicant.  In our view, it does not add anything of substance to the proposed grounds set out in the applicant’s Form XI, which we have already addressed.  Nor do the matters raised by the applicant in his oral submissions at the hearing before us, which were in essence refinements and repetition of some of the arguments advanced in the grounds of appeal with which we have dealt above.

38.  Insofar as the applicant also sought in his oral submissions to advance new points relating to matters not raised in his grounds of appeal, we do not think that there is any proper basis in the circumstances of this case to permit him to do so.  In any event, we are satisfied that there is nothing of substance in those new points.  The issue of identification in respect of the first charge was not in issue before the Judge because of the CCTV footage showing the applicant as the person entering the Societe Generale offices and his admission under caution.  Since the Judge’s acceptance of the evidence of PW4 was not challenged in the grounds of appeal, the transcript of that witness’ evidence at trial is not in the appeal bundle so we do not consider it open to the applicant to raise arguments as to that evidence.

39.  For these reasons, the application to leave to appeal against conviction is dismissed.

The appeal against sentence

40.  In the perfected grounds of appeal against sentence dated 5 January 2011, one ground of appeal is advanced, namely:

“1. In passing sentence, the Learned Deputy Judge erred in failing to give sufficient consideration to the question of totality and the total sentence of 3 years and 9 months imprisonment after trial for the two offences is manifestly excessive when compared with the sentences imposed on other defendants in more serious circumstances: Secretary for Justice v Chan Tsz Lung, CAAR 4/1998; HKSAR v Xie Guohong, CACC 384/2003; HKSAR v Cheng Wai Kai, CACC 338 & 339/2007; HKSAR v Ng Ngai Shan, CACC 197/2008; and HKSAR v Fan Kit Hung, CACC 62/2009.”

41.  In his Reasons for Sentence dated 28 September 2010, the Judge took as the starting point for a single burglary of commercial premises by a first offender of full age where there were no aggravating or mitigation features a term of imprisonment of 2 years and 6 months.  The Judge rejected the defence submission that these burglaries were akin to those of a sneak thief walking into an office to steal whatever he can find so that a lower starting point would be appropriate.  We agree that 2 years and 6 months’ imprisonment was the correct starting point for each of these offences of burglary.

42.  The Judge also correctly noted that, where the defendant has committed more than one offence of a similar nature at different times, a higher sentence than if there had been only one offence is appropriate.

43.  In sentencing the applicant, the Judge took into account his clear record, that he had reported to the police that someone had left HK$300 at an ATM machine and his work as a volunteer leader as well as everything said on his behalf in mitigation by his counsel, including the fact the applicant was the main breadwinner of the family.

44.  Paragraph 7 of the Reasons for Sentence is set out under the heading “Totality of sentence” and reads:

“7. The two burglaries committed on the 4^th and 23^rd June last year are separate and distinct for which consecutive sentences are appropriate. I am satisfied an overall sentence of 3 years and 9 months imprisonment is appropriate, which properly reflects the defendant’s criminality for these two burglaries.”

45.  Accordingly, the Judge passed sentences of 2 years and 6 months on each of the first and third charges and made 1 year and 3 months of the sentence on the latter consecutive with that on the former, giving the total sentence now appealed against.

46.  Mr H Y Wong, counsel for the applicant, submitted that the Judge failed to give sufficient consideration to the question of totality and that a comparison of more serious cases of burglary show that the sentence of 3 years and 9 months’ imprisonment for the two offences is manifestly excessive.

47.  There can be no question, in our view, that the Judge did take the issue of totality into consideration.  As noted above, paragraph 7 of the Reasons for Sentence was set out under the heading “Totality of sentence”.  The Judge’s approach was to apply a starting point of 2 years and 6 months for each offence and not to increase the starting point for the first offence by reason of the commission of the second offence.  In doing so, he was proceeding in a wholly orthodox manner.  His approach in deciding to make part of the sentence for the second offence consecutive, and the remainder of that sentence concurrent, with the sentence for the first offence in order to reflect the overall criminality for the two offences was likewise wholly orthodox.

48.  The real question at issue is whether the totality of the sentence arrived at was manifestly excessive, as Mr Wong submitted it was.  In this respect, Mr Wong relied on a number of cases involving more serious burglaries which attracted sentences which, in his submission, showed the sentence in the present case to be manifestly excessive.

49.  First, in Secretary for Justice v Chan Tsz Lung, unrep., CAAR 4/1998, 2.7.98, the defendant pleaded guilty to 15 counts of burglary of non-domestic premises committed over a period of 7 months and one charge of possession of an offensive weapon.  He was sentenced by the trial judge to 15 months’ imprisonment for the burglary offences and to 6 months’ imprisonment for the possession of an offensive weapon offence, to run consecutively to the sentences for the burglary offences, thus making a total of 22 months’ imprisonment.  On a review of sentence, the Court of Appeal considered that a starting point of 5 years (i.e. 60 months) after trial was appropriate for the burglaries.

50.  Next, in HKSAR v Xie Guohong, unrep., CACC 384/2003, 5.2.04, the defendant pleaded guilty to four counts of burglary of non-domestic premises committed over a period of 2 months involving property of the value of HK$470,000.  The defendant had come specifically to Hong Kong on a two-way permit for the purposes of committing the burglaries.  He was sentenced to 60 months’ imprisonment for the burglary offences (indicating a starting point of 7 years 6 months, i.e. 90 months).  On appeal, the Court of Appeal reduced the sentence and substituted a starting point of 6 years (i.e. 72 months), which was reduced to 4 years (i.e. 48 months) on account of the defendant’s plea.

51.  Third, in HKSAR v Cheng Wai Kai, unrep., CACC 338 & 339/2007, 11.6.08, the defendant was charged in two separate cases with a total of four counts of burglary and one of attempted burglary of non-domestic premises to which he pleaded guilty.  The property stolen was valued at over HK$130,000.  He was sentenced to a total of 40 months’ imprisonment.  The Court of Appeal upheld the total starting point of 5 years’ (i.e. 60 months) for the offences, noting that although this was “not a lenient one” it was “neither manifestly excessive nor wrong in principle”.

52.  Finally, in HKSAR v Fan Kit Hung, unrep., CACC 62/2009, 14.7.09, the defendant pleaded guilty to 13 counts of burglary of non-domestic premises.  The offences were committed over a 4 month period and involved the theft of cash of HK$130,000 as well as clothing and other items.  He was sentenced to a total of 6 years’ imprisonment, the Judge taking a notional starting point of 9 years.  The Court of Appeal held that the appropriate starting point was 6 years (i.e. 72 months) and reduced the sentence accordingly to 4 years (i.e. 48 months).

53.  By way of counterpoint to the cases of multiple counts of burglary cited by Mr Wong, Mr Robert K Y Lee, Senior Assistant Director of Public Prosecutions, cited various cases involving two or three counts of burglary.  Two of these (HKSAR v Chu Chun Man, unrep., CACC 415/2009, 3.8.10, and HKSAR v Tsang Kai On, unrep., CACC 79/2010, 21.10.10) related to domestic premises and may be distinguished on that basis. In HKSAR v Chan King Yuen, unrep., CACC 29/2010, 20.7.10, the defendant pleaded guilty to three counts of burglary of non-domestic premises.  On appeal, his sentence was reduced to 24 months’ imprisonment (indicating a starting point of 36 months).  In HKSAR v Hui Yee Lung, unrep., CACC 284/2009, 22.7.10), the defendant pleaded guilty to three counts of burglary of non-domestic premises and one count of going equipped.  On appeal, his overall sentence (based on a starting point of 6 years, i.e. 72 months) was reduced to 40 months (i.e. an overall starting point of 60 months).

54.  In the present case, the total sentence imposed on the applicant was 3 years and 9 months (i.e. 45 months) after trial. This is lower than the starting points in the four cases relied upon by Mr Wong, namely 60 months (in two of the cases) and 72 months (in the other two cases).  It is also lower than the starting point in Hui Yee Lung (i.e. 60 months).  It is slightly higher than the starting point of 36 months in Chan King Yuen, but the facts of that case can be distinguished in that the burglaries there involved the theft by the defendant of food for personal consumption.

55.  In our view, we are satisfied that the overall sentence imposed by the Judge was one which was not manifestly excessive or otherwise wrong.  These burglaries were separate and distinct offences committed in different locations, on different dates and involving different victims.  Furthermore, the burglaries were, as the Judge noted, planned burglaries in that the defendant chose a specific time, namely the lunch hour, when the offices might be less busy and in that he prepared and took with him documents which were either intended to be used by him as a subterfuge or were false (his name cards and the “EXPRIED/RETURN” (sic) stickers) in order to explain his presence in those offices should he be confronted in the course of the burglaries.  In these circumstances, we do not think that there is any proper basis for us to interfere with the Judge’s decision to make 1 year and 3 months of the sentence for the second offence consecutive with the sentence for the first offence.

56.  As an alternative approach, Mr Lee invited the court to revisit the sentence and to hold that the starting point of 2 years and 6 months was too low in view of the aggravating features of the offences.  He invited us to substitute a starting point of 3 years for each offence, of which 9 months should run consecutively, thereby arriving at the same total sentence of 3 years and 9 months as that imposed by the Judge.

57.  Convenient as this might be, we do not consider it appropriate to accede to Mr Lee’s invitation in this regard.  As indicated above, we consider that the Judge was right to apply a starting point of 2 years and 6 months for each of the burglary offences.  The crucial question is the appropriateness of the overall sentence imposed by the Judge, rather than the precise manner in which it was arrived at.

58.  For the reasons set out above, we consider that the Judge’s overall sentence cannot be said to be manifestly excessive and, accordingly, we dismiss the application for leave to appeal against sentence.