HKSAR v. MOHAMMAD MURSALEEN

CACC103/2009

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 103 OF 2009

(ON APPEAL FROM DCCC 974 OF 2008)

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BETWEEN

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J U D G M E N T

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McMahon J (giving the judgment of the Court) :

1.  The applicant was convicted on his own plea in the District Court by Judge Andrew Chan of an offence of theft, contrary to section 9 of the Theft Ordinance (“Charge 1”), and of an offence of possession of dangerous drugs, contrary to section 8(1)(a) and (2) of the Dangerous Drugs Ordinance (“Charge 2”). He was sentenced to 20 months’ imprisonment in respect of the theft offence and to 6 months’ imprisonment for the dangerous drugs offence. The sentences were ordered to be served consecutively, resulting in a total sentence of 26 months’ imprisonment. The applicant now seeks leave to appeal those sentences.

2.  The facts of the case, accepted by both the prosecution and the defence for the purposes of the plea, were that the applicant and an accomplice (who was never arrested) were found by PW1 inside his family premises at about 7 a.m. on the day of the offence. PW1 noticed that property had been taken and questioned the applicant. The accomplice fled. The applicant told PW1 that he would replace the items taken, but when PW1 threatened to call the police the applicant also fled.

3.  Some days later the applicant was located by police and arrested. When searched he was found to have some of the stolen property on his person and, in a metal container in his possession, were found the drugs the subject of the 2^nd charged offence.

4.  Under caution he said that he and his accomplice had on the night of the theft offence come across a drunken man lying in the street with a set of keys, which apparently belonged to him, lying nearby. They had determined the man’s address and had then, as an act of kindness, helped him home. The man was PW1’s son and his address was PW1’s flat. The theft had occurred on the spur of the moment only after they had gained entry to the flat using the son’s keys. It was an agreed fact that the value of the property taken, which included two wallets, cash of HK$5,700 and RMB1,300, two watches, rings, mobile phones, various identity documents and bank cards, totalled about HK$29,000.

5.  The applicant was originally charged with burglary rather than theft, but the burglary charge was substituted with the theft charge, and it was to that charge that the applicant entered his plea of guilty.

6.  The applicant, who was unrepresented before us, has advanced a number of complaints as to the sentences imposed. In respect of the theft offence he complains that he was sentenced on the basis that the judge regarded the offence as one of burglary rather than of the opportunistic theft that it was, and that as a consequence the starting point was too high. So far as the drug offence was concerned he complains that again the starting point was too high given the small quantities involved. He asserts in respect of both offences that the judge did not sufficiently take into account his provision to the police of details as to the identity of the accomplice who was with him at the time of the theft offence.

7.  The applicant additionally seeks the mercy of this court on the basis that he is the sole breadwinner of his family and that his family will suffer while he is in prison. We do not propose to deal with this latter aspect of the applicant’s submissions other than to say that his family are being provided with care by government authorities and are in no worse situation than is the unfortunate lot of many family members of imprisoned persons convicted of criminal offences.

8.  We will deal with the more substantive matters raised by the applicant.

The sentence imposed in respect of the theft offence

9.  In arriving at his sentence, the judge said this :

“5.  The defendant was originally charged [with] burglary.  It was later changed to one of theft because, presumably, it was accepted by the prosecution that when the defendant and his accomplice entered the subject apartment at the beginning, they were no more than rendering assistance to PW1’s son who was drunk and found lying on the street earlier.  The version put up by the defendant seems a bit bizarre to me for it would be normal for anyone to render assistance in such a situation to ascertain the true identity of the drunken man from the occupants of the house before allowing themselves into the apartment.”

and then later :

“7.  Although the defendant was not charged and convicted of burglary, the facts presented so far bear almost all the hallmarks of a case of domestic burglary.  In respect of burglary committed in domestic premises, the normal starting point is one of 3 years’ imprisonment.  In relation to the present case, given the slightly unusual facet of the case and the seemingly acceptance by the prosecution of that facet, I am of the view that the appropriate starting point can be lowered by 6 months to reflect that fact.”

10.  The judge focused on those aspects of the offence which lent it the “hallmarks” of a burglary. There was not necessarily anything wrong with the judge taking those matters into account. After all the applicant and his accomplice, although not entering the premises as trespassers, had become intruders, for all practical purposes, once they had remained in the premises to ransack it after they had taken PW1’s son to his room. That was a matter which went to the weight of the offence, as was the undoubted shock PW1 and his wife PW2 must have experienced when they found the applicant and his accomplice in their premises at an early hour in the morning.

11.  But nevertheless it was the charge of theft to which the applicant had pleaded and it was on that basis that he should have been sentenced. A defendant is entitled to be sentenced only in respect of the offence with which he is charged and convicted and we are concerned that. The judge focused to too great an extent, in arriving at his starting point of sentence, on the sentence appropriate for a domestic burglary.

12.  That concern is reinforced by the starting point eventually taken of 30 months’ imprisonment. The value of the property stolen, as stated in the agreed facts, was about $29,000. That, while significant, is not a great sum and, without more, a theft of property in that amount would normally not warrant so high a starting point.

13.  There was nothing to suggest that the offence was committed with any great planning and, indeed, once it was accepted that the applicant and his accomplice had entered the premises for the purpose of returning PW1’s son to his home, the theft could have been little other than opportunistic. Suspicions to the contrary there may be but, given the charge and, most particularly, the fact that the applicant’s assertions as to the circumstances of the theft were not challenged or tested, it was on the factual basis asserted by him that sentence fell to be passed. On that basis, sentence had to be approached on the footing that there was no unlawful entry to the premises and that the theft was not planned.

14.  Nevertheless there are factors which aggravate the sentence which otherwise would have been appropriate. Those are that the two offenders were strangers to PW1 and to his family, and that in the small hours they knowingly overstayed the purpose for which they had permission to enter. Their continued presence was intrusive and transpired to cause alarm to PW1 and his wife.

15.  In such circumstances, we think that the appropriate starting point was one of 21 months’ imprisonment. Reduced for the applicant’s plea, that would result in a sentence of 14 months’ imprisonment. In so concluding, we emphasize that the circumstances of the case are highly fact sensitive and are unlikely to be of use as a guideline in other cases.

The drugs offence

16.  The applicant was found in possession of 4.83 grammes of cannabis resin, 0.01 grammes of midazolam and 0.14 grammes of heroin.

17.  The starting point adopted by the judge of 9 months cannot be said to be excessive. The applicant was found in possession of a “cocktail” of drugs and given the comments of this court (differently constituted) in HKSAR v Mok Cho Tik (2001) 1 HKC 261 approving a starting point for possession of a quantity of dangerous drugs which a bona fide user would normally have in his possession as being within the range of 12 to 18 months’, the starting point of sentence, even allowing for the small quantities involved, could not realistically be made the subject of complaint. The judge carefully took into account the circumstances of the offence. He noted the quantities of the drugs involved and the negligible latent risk of them falling into the hands of others. The starting point was properly reduced to a sentence of 6 months’ imprisonment to reflect the applicant’s plea. That was a level of sentence appropriate to the facts of the case.

Totality

18.  The judge ordered the sentences imposed in respect of each offence to be served consecutively. We think that to be appropriate given the complete lack of nexus between the offences. The drug offence was committed some three days after the theft and was completely unrelated in nature. We see no reason to disturb the totality of the sentence at which we have arrived.

The provision of the accomplice’s details

19.  It is not disputed that the applicant provided to the police some personal details of the person with whom he said he had committed the offence. Nor is it disputed that the accomplice has never been found. In other words nothing came of the information provided by the applicant.

20.  In those circumstances the applicant cannot rely upon his provision of information as being mitigation of any substance : see HKSAR v Bin Kei Chi, CACC181/2005where this court (differently constituted) said :

“14.  We take this opportunity to emphasise once more, in the interests of parity in sentencing policy, that co-operation after arrest, where meaningful assistance provided has led to a tangible result, is rewarded by the courts but either an unfulfilled promise or an attempt to assist which is of no significant practical value at the sentencing stage does not carry with it the prospect of a reduced sentence.”

21.  The applicant’s provision of information patently resulted in nothing of practical value and his complaint in this regard is groundless.

Conclusion

22.  For the reasons we have given we allow the application, treat the hearing of the application as the appeal, but allow the appeal only so far as the sentence imposed in respect of the 1^st charged offence is concerned. That sentence is reduced to one of 14 months’ imprisonment. The balance of the judge’s orders remain intact.

23.  That results in a total sentence of 20 months’ imprisonment.