HKSAR v. MOHAMMAD FAROOQ

CACC 406/2013

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 406 OF 2013

(ON APPEAL FROM DCCC NO 344 OF 2013)

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J U D G M E N T

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Hon Poon J (giving Judgment of the Court) :

INTRODUCTION

1. The applicant was charged with one count of attempted burglary, which took place on 30 December 2012 at 12/F, Elegance Court, No 324 Sai Yeung Choi Street North, Mongkok, contrary to section 11(1) (a) and (4) of the Theft Ordinance, Cap 210 and section 159G of the Crimes Ordinance, Cap 200.  On 23 October 2013, HH Judge Woodcock convicted him of the offence after trial and sentenced him to 3 years’ imprisonment.

2. By the requisite notice dated 15 November 2013, the applicant applied for leave to appeal against sentence.  His application was dismissed by Yuen JA on 28 February 2014.  As is the practice, Yuen JA also gave a “loss of time warning” to the applicant.  Despite the warning, the applicant now renews his application for leave to appeal against sentence out of time. He does so by a notice filed with the court on 20 March 2014.  That was out of time.  He explained that the delay was caused by a delay in procuring an interpreter.  It was not his fault.

PROSECUTION’S CASE

3. On 29 December 2012, the applicant replaced one Mr Abbas Mohammad as the night shift security guard of Elegance Court.

4. Elegance Court has one flat on each floor.  At all material times, Ms Deng Xiaohong lived alone on the 12/F.  At about 0030 hours on 30 December 2012, Ms Deng heard several rings of the doorbell.  She looked through the peephole of the door and saw the applicant outside.  She waited to see what the applicant would do.  Then the applicant opened one of the two locks with a key.  Having done so, he tried to open the second lock with other keys.  Ms Deng then made a report to the police.  The police soon arrived and found the applicant at the staircase of 13/F.  Ms Deng pointed him out to the police.  He was then arrested.  He was found to be in possession of over 70 keys in four bundles.  One of the keys could open the lower door lock of Ms Deng’s flat.

5. Two video recorded cautioned interviews were conducted on 30 and 31 December 2012.

6. In the 1^st cautioned interview, the applicant denied that he had attended 12/F or that he had used the keys to open the door of 12/F.

7. In the 2^nd cautioned interview, the applicant stated that he replaced his friend as the night shift security guard of Elegance Court on 29 December 2012.  At about 0100 hours on 30 December 2012, he went to 12/F to check around.  He pressed the doorbell of the flat. He then turned the doorknob to see if there was any irregularity.  The keys found in his possession at the time of his arrest were picked up from a recycling shop in Kwun Tong belonging to his relative.

CONVICTING THE APPLICANT

8. In convicting the applicant, the Judge was sure that he had checked to see if Ms Deng was at home by ringing the doorbell and that if he was convinced that she was not, he would try to gain entry to steal from 12/F.  The Judge was satisfied beyond reasonable doubt that the applicant clearly attempted to enter 12/F, uninvited with an intent to steal therein.

REASONS FOR SENTENCE

9. The applicant was at the time of sentence 43 years old.  He came to Hong Kong from Pakistan in the early 1990s.  He is married with four children, two of whom were students.  He worked at a recycling shop in Kwun Tong belonging to his relative.  He also worked as a relief caretaker.

10. The applicant has two previous convictions of theft in December 2003 and February 2004 for which he was sentenced to 4 months’ and 2 months’ imprisonment respectively.

11. The applicant’s wife was a housewife and was not in good health.  The Judge did not regard her condition as a mitigating factor.  The Judge was sure that it was something the applicant was well aware of before he committed the offence.

12. The Judge took 3 years as the starting point. The Judge said that if an occupant was at home and likely to be confronted or frightened by a burglar, that would be an aggravating factor.  But she accepted that the applicant tried to make sure that no one was at home before he attempted to enter 12/F.  So, she did not increase the starting point.

13. The Judge said that a charge of attempted burglary did not make the offence less serious insofar as the starting point was concerned.

14. Finally, after taking into the applicant’s background, mitigation put forward on his behalf, and the facts of the case, the Judge sentenced the applicant to 3 years’ imprisonment, noting that there was no reason for any discount from the starting point.

DISCUSSION

15. The principles governing an application for leave to appeal against sentence out of time are well settled.  In brief, the court will take into account the length of the delay, the reasons for the delay and generally the bona fides of the application for extension of time. The court will also consider the grounds of the proposed appeal to see if, by refusing leave to appeal, the court would not shut out a substantial and plainly arguable appeal.  Substantial grounds must be shown for the delay before the court would grant an indulgence.  The longer the delay, the more onerous is the duty on the applicant.  See HKSAR v Medina & Another, CACC 296/2007, unreported, 31 January 2012, at §12; referred to in HKSAR v Gu Guolin, CACC 25/2012, unreported, 13 June 2014.

16. We propose to first deal with the merits of the appeal, which is determinative of the application.

17. A 3 years’ imprisonment after trial is the normal sentence for an attempted burglary of domestic premises: see HKSAR v Po Yan Chuen [2002] 2 HKC 172.  The Judge was entirely correct in adopting that as a starting point.  The only ground of appeal relied on by the applicant in the notice of 20 March 2014 is that the sentence is too long.  At the hearing today, the applicant placed before us a letter setting out the grounds in support of application in greater detail.  He said he is remorseful and begs for mercy.  He is worried about his wife’s health condition.  He is concerned about his family who would be without his support while he is in prison.  He wants to have a reduction of sentence so that he can be released soon, then he can take care of his family.

18. The applicant’s wife and the applicant’s sons are in court today.  The applicant’s wife submitted a medical certificate dated 10 July this year, issued by the Hospital Authority, certifying that she is suffering from URTI, DM and asthma.

19. The applicant says that his wife does not work.  She cannot take care of the children very well, although the wife has some own family members in Hong Kong.  They are unable to help her.

20. The applicant’s sons are aged between 9 and 11, so they are in tender age.  They want to go to school, but because of the mother’s illness, they cannot do so.

21. These matters (other than the wife’s medical certificate) have been advanced by the applicant as mitigation before the Judge and also as grounds in support of his application for leave to appeal before Yuen JA.

22. These matters are not mitigating factors in the applicant’s favour, which would warrant a more lenient sentence.  In the circumstances of this case, the Judge is entirely correct in imposing a sentence of 3 years’ imprisonment.

DISPOSITION

23. The applicant’s application is wholly unmeritorious.  We dismiss it accordingly.

Hon Lunn VP :

24. On 28 February 2014, having dismissed the applicant’s application for leave to appeal against sentence, the applicant was given a “loss of time” warning by Yuen JA.  Today, the applicant has advanced the same grounds of appeal against sentence as he advanced before Yuen JA, namely a plea for mercy because of the circumstances of his family.  In particular, the applicant re-iterates his concern that his wife’s illness prevents her from caring properly for his two young sons.  Notwithstanding, the warning the applicant persisted with his hopeless application today.  In those circumstances, we gave the applicant the opportunity to address the court as to why we ought not to make an order under section 83W of the Criminal Procedure Ordinance, Cap 221.  He said, “Please think about my family and keep the sentence the same.”

25. We are satisfied that it is appropriate to make an order under section 83W.  We order that a period of 6 weeks of the time during which the applicant has been in custody pending determination of his appeal shall not be reckoned as part of the term sentence to which he is for the time being subject.

26. In regard to the applicant’s family, we directed the respondent to contact the Social Welfare Department to invite them to contact the applicant's wife to ensure that the needs of the family are being met.