HKSAR v. WAN KA KIT

CACC 298/2005

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

criminal APPEAL NO. 298 OF 2005

(ON APPEAL FROM DCCC NO. 85 of 2005)

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J U D G M E N T

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Stuart-Moore, VP (giving the judgment of the Court):

Background

1.  On 6 July 2005, the applicant, aged 18 years and 10 months, was sentenced to detention in a training centre.  This followed his conviction for burglary on 22 June 2005 after a trial in the District Court before Judge Mary Yuen.  The applicant (D2 at trial) now seeks leave to appeal against sentence.  At the outset of these proceedings, the applicant indicated that he was not pursuing his application in regard to conviction.  Accordingly, that application was dismissed.

2.  The applicant was jointly charged with three others (D1, D3 and D4) but each of them pleaded guilty to the burglary on 18 May 2005.  After the conclusion of the evidence given at the applicant’s trial, they were ordered to perform community service.

3.  The burglary concerned the taking of 38 sets of laptop computers, valued at $162,500, from the storeroom of the Salvation Army William Booth Secondary School, Kowloon, on 18 December 2004.  The applicant and D1 were ex-students of the school whereas D3 and D4 were current students there.  Only nineteen of the stolen computers were successfully removed from the school premises.  Eighteen of these computers were sold to a shop for $8,500.  This was shared between the burglars save that, when it was realised the police were investigating, the proceeds which remained were given to a 5^th defendant (D5) for safe-keeping.  D5, who contested a charge of dealing with property known or reasonably believed to represent the proceeds of an indictable offence, was tried with the applicant and received a probation order for her part.

4.  The main evidence against the applicant was provided by D1 who, having pleaded guilty at the commencement of the trial, gave evidence for the prosecution.  He described the discussions which had taken place about how to burgle the school.  He said that the applicant then obtained ‘Allen’ keys, cutters and gloves amongst other things.  D1 obtained the services of PW1 to provide the transport they needed to take away the stolen goods.  Later, when the burglary took place, the applicant played a full part.

5.  The applicant’s thumbprint was found on PW1’s vehicle which had transported nineteen of the stolen computers.  PW1 was given a computer as his reward.  However, when he realised the computers he had carried in his vehicle were stolen, he reported the matter to the police.

The application

6.  Mr Cheung, on the applicant’s behalf, advanced five main grounds of appeal, the last of which, where we have again had to review the decision in HKSAR v Chow Chak-man and Anor (below), has general importance.

(1) Absence of community service report

7.  He submitted, firstly, that the judge ought to have obtained a community service order report in the applicant’s case and that her omission to do so was an indication that she must have regarded herself as “precluded” from doing so.

8.  There was, in our view, no substance to this ground.  It is well established that a judge who has decided that community service is not a viable option and who, therefore, has no intention of making a community service order in a particular case, should not request such a report when the whole purpose of doing so is to ascertain the defendant’s eligibility for community service.  To do so, in many instances will give rise to a false hope on the part of the defendant when, in truth, there is no realistic prospect of it ever being acted upon even if its contents prove to be favourable.  In this sense, it is also a wasteful use of resources.

(2) Wrongful basis for determining applicant’s role

9.  The second point raised by Mr Cheung was a sound one.  He rightly indicated that the judge had relied, for sentencing purposes, on the remarks made to a probation officer by D4 and D5 after they had been remanded for reports which suggested that the applicant was the ‘mastermind’.  In view of what was said by this court in HKSAR v Wong Wan-heung and Ors [2005] 2 HKLRD 749 (judgment given on 17 February 2005) and HKSAR v Lee Wan-fung, CACC 339/2004 (unreported) (judgment given on 12 April 2005), where evidence was similarly misused, we were somewhat surprised to find that the judge, the same in each case, had once again, with respect, fallen into the same trap.  The judge stated in her Reasons for Sentence:

“4. From what had been related by D5 and D4 in their reports for sentence, it was clear that D2 was very much the mastermind behind the plot, even though D2 was adamant that he was never a part to the scheme to burgle (as stated in para 10 of the background report).” (Appeal bundle p. 54)

10.  By contrast, however, we should say in fairness to the judge that in her Reasons for Verdict, when considering the applicant’s case in his joint trial with D5, where D5 had made statements to the police, she specifically stated:

“This court pays no heed to the contents of D5’s statements for those parts touching on D2’s involvement for D5 did not testify in court.  D5’s out-of-court statement is not evidence against D2 regarding D2’s involvement in the events.” (Appeal bundle p. 32)

11.  It seems that the judge must have thought this rule did not apply for the purposes of sentencing.  Having regard to the error in the judge’s approach to the applicant’s role so far as sentence is concerned, by placing reliance on the untested, post-trial remarks of two co-defendants about him, it is apparent that we need to commence the sentencing process afresh.

(3) Disparity

12.  The third ground of appeal was that the training centre order created a disparity in the sentence imposed upon the applicant having regard to the community service orders which the other three defendants involved in the burglary received and the probation order which was made in D5’s case for dealing with the proceeds.  In the same context, we have in mind the further submission made by Mr Cheung to the effect that the applicant’s previous good character and his personal and family circumstances were not sufficiently taken into account when the training centre order was made.

13.  On the question of disparity, there are several factors to be borne in mind which appear to lie at the root of the judge’s decision to impose a more severe sentence on the applicant than any of the others.

14.  As Mr Cheung accepted, the applicant’s offence involved an element of ‘breach of trust’.  He had taken a job as a computer assistant at the school where this burglary occurred and had only left by a matter of a few weeks when he committed the burglary aimed at stealing the school’s computers.

15.  Next, the applicant, alone amongst the perpetrators of the burglary, pleaded not guilty.  This was despite strong evidence against him.  All of the others pleaded guilty at the beginning of the trial and, in this connection, D1 gave evidence for the prosecution.  On this ground alone, D1 had to be distinguished from the applicant on sentence to avoid unfairness to D1.

16.  D3 and D4 were also in a different category by reason of their ages.  D3 was 16 and D4 was 14.  In this regard, we particularly bear in mind what this court said in HKSAR v Cheng Ka-wing [2001] 2 HKLRD 260 at page 264, namely:

“We accept that there may be an objectionable disparity of sentences where one of two, or more, defendants receives from the same Judge and at the same time, a more severe sentence than the other, or others and the difference is not justified by any relevant distinction in their culpability or personal circumstances.  There is ample authority for that proposition.  R v Quirke (1982) 4 Cr App R (S) 187, R v Sykes (1980) 2 Cr App R (S) 173 and R v Church ((1985) 7 Cr App R (S) 370 are all examples of its application.

However the Judge was not dealing with adult offenders, the defendants before her were young offenders and it was incumbent upon her to ensure, so far as she could, that each received a sentence that was appropriate for his needs and would best give him a chance to reform.”

17.  The position of D5 was entirely different.  Her offence was less serious, and she had also, to her credit, shown some remorse by advising some or all of the others involved in the burglary to surrender to the police.

18.  Whilst, as we said earlier, the judge was wrong to have labelled the applicant as the ‘mastermind’ based upon inadmissible material, the evidence given by D1, aged exactly 19 on the date he was sentenced, seemed to indicate that both he and the applicant had played a more significant role in the burglary than the two younger defendants.  This is to some extent further demonstrated by D1’s evidence that they had taken a larger share of the proceeds from the sale of the stolen computers.  D1 and the applicant each had $3,000 whereas D3 and D4 shared between them the remaining $2,500.

19.  With these factors in mind, we do not criticise the judge for remarking that:

“… Though a 2 ½ years imprisonment would normally have imposed after trial for an offence of burglary [of non-domestic premises], in light of D2’s clear record, his young age, this court is prepared to adopt a rehabilitative approach and sentence him to the training centre for him to learn the proper values of life in a structured rehabilitation programme.” (Appeal bundle p. 54)

20.  Whilst the judge made no reference, when sentencing the applicant, to other aspects of the applicant’s personal and family circumstances, she was well aware of the evidence given by members of the staff at the burgled premises which went to the applicant’s credit and she made several references to this when giving her Reasons for Verdict.  In addition, we have been provided in these proceedings with a number of recently written letters of reference which provide encouraging signs of hope for the applicant’s future.

21.  There were, in our opinion, valid reasons for the training centre order and we do not consider that the disparity argument has been made out.

(4) Genuine remorse?

22.  The fourth ground advanced by Mr Cheung was that all the factors, including genuine remorse, which may make a community service order appropriate, as decided in HKSAR v Chow Chak-man and Anor [1999] 2 HKC 659 (and [1999] 3 HKLRD 37), adopting R v Brown [1981] 3 Cr App R (S) 294, were applicable to the applicant.  Later, we shall have more to say about the judgment in Chow Chak-man and Anor, but the gravamen of this ground amounted to a criticism of the judge for stating that the applicant had shown a “total lack of remorse” when the background report prepared by a probation officer had indicated that the applicant had expressed remorse.

23.  With respect to Mr Cheung, he was perhaps putting the applicant’s so-called ‘remorse’ a little too high.  What the probation officer actually stated was this:

“10. Toward the present offence, the Accused adopted an evasive attitude.  Although he was able to admit his involvement, he seemed to have played down his faults.  He said that CHUNG Wai-lun [D1] was his ex-schoolmate who had left the school at Form 3.  They remained casual friends thereafter.  He reported that it was [D1] who planned the burglary.  He recalled that he had accidentally met [D1] at the school on the material date when he was on the way to join the silver band.  He claimed to be totally ignorant about the burglary at the time.  He simply assisted [D1] remove the computers upon his request.  He was only told of the burglary after boarding the car.  Out of momentary greediness, he had been involved.

11. Upon reflection, the Accused expressed remorse.  He believed that his susceptibility to peer influence and his greediness were the factors to blame … ” (Appeal bundle pp. 63-64)

24.  This does not seem to us to have been the most whole-hearted expression of remorse.  Similarly, in the Training Centre Suitability Report, the applicant is recorded as having said that it was only after the commission of the burglary, when the proceeds were being shared, that D1 told him “the truth” behind the venture.  The report states that the applicant “blamed himself for his ignorance and undesirable peers’ affiliation”.  Furthermore, in this context, it is not without significance that the applicant had contested the charge and that it was only at the start of these proceedings on 26 January 2006 that the applicant indicated he would no longer pursue his application for leave to appeal against his conviction.  These matters all serve to confirm the judge’s view that the applicant lacked remorse, at least in any genuine sense.

25.  In any event, even if a number of factors exist which in combination make an offender a suitable candidate for a community service order, a judge should not, as we indicated in Secretary for Justice v Lin Min-ying and Anor [2002] 3 HKC 415 at page 421, “slavishly make such an order”.  The gravity of the offence itself must be carefully considered before an order of this kind is contemplated.  This was, in the present case, a serious burglary and the judge was justified in taking the view that, in the applicant’s case, community service was not an appropriate method of disposal.

(5) Review of decision in HKSAR v Chow Chak-man and Anor [1999] 2 HKC 659 (and [1999] 3 HKLRD 37)

26.  We turn, finally, to the fifth ground of appeal in which Mr Cheung relied upon the decision in Chow Chak-man and Anor (above) as providing support for imposing a community service order.  In that case, the 1^st appellant (A1) was convicted after trial with A2 of burglary.  The Court of Appeal accepted that A1 had played what it described as “the minor part”.  A background report from a probation officer as well as community service and detention centre reports were ordered by the trial judge in respect of A1 and A2.  Although these were “most favourable” to A1, the judge nevertheless sentenced him to 2½ years’ imprisonment having concluded that the burglary, involving property worth $60,000, was serious.  This court determined that the judge’s conclusion could not stand because he had erred in principle by appearing “to have regarded himself as simply precluded from imposing a community service order upon the basis [that] burglary was a serious offence and that a custodial sentence was inevitable” when community service was itself an alternative to a custodial sentence.  The judgment continued (in the report at [1999] 2 HKC 659) at page 663:

“It is here that Ms Remedios’ further submission, concerning the types of offender in respect of whom community service orders are appropriate, comes into play. Guidance on the matter was given by the Court of Appeal in R v Brown (1981) 3 Cr App R (S) 294 at 295; it is helpfully reproduced at p 40 of Cross and Cheung [3^rd edition].  The guidance given in Brown indicates that the offenders who can be said to be best suited to community service orders will:

(1) be either a first offender, or one with a ‘light’ criminal record;

(2) come from a stable home background, perhaps with a family;

(3) have a good work record－orders are not designed to encourage the lazy; or to show the idle, the errors of their ways;

(4) be in employment, or have a realistic prospect of such;

(5) have shown genuine remorse; or

(6) present no more than a slight risk of re-offending.

It is to be observed that these characterisations are alternatives.”

The court went on to say that counsel had convincingly submitted that A1 appeared to meet all of the factors they had set out.  In close similarity to the present case, the court in Chow Chak-man (A1), when dealing with “genuine remorse” at (5) in the list of six factors, said that “while he sought originally to challenge his conviction, he can be said to have now shown a measure of remorse in abandoning it today before us and accepting the conclusion of the court”.

27.  Leaving aside the fact in that case that A1’s remorse appears to have been extremely limited, having contested his trial in the first place and having then followed this with an application for leave to appeal against his conviction, the court had also been misled by an unfortunate error appearing in the 3^rd edition of ‘Sentencing in Hong Kong’ which is extensively used as a standard textbook in the criminal courts of Hong Kong.  The error led the court into believing that R v Brown [1981] 3 Cr App R (S) 294 provided guidance, in the form of six alternative “characterisations”, for those best suited to community service.  This error, so far as it related to alternative characterisations, has now been corrected in the 4^th edition of that textbook.  However, R v Brown was not, in the true sense, a guideline case at all although it does provide some useful guidance as to the way the English Court of Appeal treated those factors in that case.  The six “characterisations” or factors referred to in Chow Chak-man’s case were present in Brown’s case, where an order for borstal training had been made, but all that the English Court of Appeal (at page 295) said was:

“But this case is tailor-made for a community service order. We have here a first offender － indeed the position would have been the same if he had had what I might call a ‘light’ criminal record; he came from a stable home background with a wife and a young child; he had a good work record; and it now appears that a job is available to him. There is apparently genuine remorse and the risk of re-offending appears slight.”

28.  The court, in other words, was not restricting the factors to be taken into account for the purposes of making a community service order to the six which they had mentioned.  Nor was it insisting that all six factors should necessarily be present, although we would think that in the vast majority of cases where such an order was appropriate most, if not all, of these factors would be present.

29.  This is not the first time we have had to criticise the decision in Chow Chak-man and Anor.  Mayo VP was one of the members of the court in that case but, as he said later in HKSAR v Wong Yiu-kuen [2002] 1 HKLRD 712 at page 717-718:

“Ground 4 was to the effect that the Judge should have made a community service order.  In this connection, much reliance was placed on HKSAR v Chow Chak Man & Another [1999] 3 HKLRD 37.  That was a rather exceptional case.  One of the factors which appears to have been weighed by the Court of Appeal was that the Judge himself requested that a suitability report be obtained.  Having received a report which was undoubtedly favourable to the defendant, he then proceeded to impose a custodial sentence without giving any reasons why he had changed what must presumably have been his view, that this might be a viable sentencing option.  In the instant case, the Judge did not, of his own volition, request such a report.  He simply acceded to the applicant’s legal representative’s request that a report be obtained.  In other words, the Judge never indicated that community service might be a possibility in the present case.

There is a further problem regarding HKSAR v Chow Chak Man & Another [1999] 3 HKLRD 37.  It is referred to in the third edition of Cross and Cheung, Sentencing in Hong Kong, at p. 75.  There is an error.  It is that according to the commentary, an ideal candidate for community service requires any one of six factors to be present before an offender can be said to be suitable for such an order.  This is of course quite wrong.  All the factors must be satisfied.

This guidance is derived from R v Brown (1981) 3 Cr App R (S) 294 at p. 295.  Unfortunately, it seems that the same error was made when this Court adopted the guidance from R v Brown, by referring to the six factors as requiring individual consideration as opposed to requiring cumulative consideration.  In any event, the Court in HKSAR v Chow Chak Man & Another [1999] 3 HKLRD 37, appears to have overlooked the fact that while the offender may have been an appropriate candidate for community service, the offence was, on its facts, too serious for this option to have been utilised.”

30.  Similarly, in HKSAR v Po Yan Chuen [2002] 2 HKC 172 at page 174, Mayo VP stated:

“10.   Mr Petrus Chan placed great reliance upon HKSAR v Chow Chak Man [1999] 2 HKC 659 where the Court of Appeal held that the imposition of a community service order was an appropriate sentence for a defendant who had been convicted in respect of the burglary of commercial premises.  The circumstances of that case were exceptional.

11.   The main reason why the court held that this was an appropriate sentence was that the judge had himself called for a community service suitability report.  This had been favourable to the defendant.  In these circumstances the defendant had a justifiable expectation that in the event of the report being favourable to him the court would make such an order.

12.   It was however difficult to see why the judge had in that case seen fit to request the report.  Furthermore it was most surprising that a report should have ever been considered where the defendant had been convicted of burglary.

13.   Be that as it may what needs to be emphasised is that it would only be in a most exceptional case that it would be appropriate to impose a community service order for the offence of burglary or attempted burglary.”

31.  We emphasise once more that other than in the most exceptional cases, a community service order will rarely be appropriate for burglary or attempted burglary.  Although such an order has, on occasion, been described as “not a soft option” to a custodial sentence, on a simple analysis it is difficult to understand what is really meant by a statement of this kind.  Obviously, on any view, it is a softer option and never, in our experience, have we encountered anyone seeking to persuade the court to impose a custodial sentence as opposed to making a community service order.

32.  In the present case, there were exceptional circumstances in existence so far as D3 and D4 were concerned in the sense that they were plainly led by much older culprits than themselves.  The position in D1’s case is more borderline because he has avoided altogether any form of custodial sentence which in normal circumstances he would have richly deserved for an offence of this gravity.  He did so not merely because he pleaded guilty but by virtue also of the evidence he gave against the applicant.  We have not been told whether D1 was considered to be ineligible for detention at a detention centre, but if D1 had been ordered to undergo training in a training centre, he could be given none of the usual benefit which is accorded to those who testify against a co-defendant.  The length of such a sentence is determined not by the court but by the Correctional Services Department.

33.  In our view, there was nothing in the applicant’s case which was so exceptional that a community service order could be regarded as appropriate.  This was a serious burglary involving an element of breach of trust for which the applicant has shown no real remorse.  There are, however, sufficient positive features about the applicant’s background which, in our opinion, make him a prime candidate for the rehabilitative form of sentence imposed in his case.

Conclusion

34.  Mr Cheung’s submissions provided arguable grounds of appeal for which reason we shall grant leave.  However, treating the hearing as the appeal, we dismiss the appeal for the reasons we have given.