HKSAR v. HAI CHUNG PO

CACC 115/2013

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 115 OF 2013

(ON APPEAL FROM DCCC 174 OF 2013)

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J U D G M E N T

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Hon Lunn JA (giving the judgment of the court):

1. The applicant seeks leave to appeal against the sentence of 26 months’ imprisonment imposed upon him on 26 March 2013 by District Court Judge S. D’Almada Remedios, following his plea of guilty to a single charge of burglary, contrary to section 11(1)(b) and (4) of the Theft Ordinance, Cap. 210.

The facts

2. At lunchtime on 1 November 2012 the applicant stole an i-Pad and an i-Phone the property of Ms Tsang Ka Bo from Staff Quarters on the Ground floor of the Chinese Rhenish Church at 12, Tat Chee Avenue, Sham Shui Po, Kowloon, where she and her mother lived.  Having opened the gate to the entrance of the church grounds and having made his way to the staff quarters the applicant entered into those premises through the grille and wooden door which had been left open whilst Ms Tsang had gone to the toilet.  A couple of minutes earlier the applicant had been intercepted and questioned by another member of the staff of the church, Ms Tam Yi Ting, as he was trying to enter those premises.  As a result, the applicant had desisted in that attempt and walked towards the entrance of the church.  However, he soon retraced his steps and entered the Staff Quarters.  Having stolen the two items, the applicant left the church through the same gate through which he had entered.  His movements were captured on CCTV cameras.

3. Following his arrest on 8 December 2012 the applicant was identified at an identification parade by Ms Tam as the person that she had encountered outside the entrance to the staff quarters.  The two items of property, valued at $8,876, were not recovered.

Reasons for sentence

4. In her reasons for sentence the judge noted that the applicant was 35 years of age and that he had 20 previous criminal convictions, 9 of which were for burglary and 8 for other offences of dishonesty.  The judge stated that she declined to reduce the usual starting point to be taken for sentence of domestic premises on the basis that no person was in the staff quarters when the applicant committed the burglary.  She said that she saw no justification whatsoever for doing so.  Indeed, the judge said that, having regard to what she described as the applicant’s “appalling criminal record in respect of dishonesty offences”, she enhanced the usual starting point for sentence by 3 months’ imprisonment.  Accordingly, the judge took a starting point for sentence of 3 years and 3 months’ imprisonment, which she discounted by one third for the applicant’s plea of guilty.  In the result, the applicant was sentenced to 26 months’ imprisonment.

Grounds of appeal against sentence

5. In his grounds of appeal against sentence, Mr Norton Pang submitted on behalf of the applicant that in imposing the sentence the judge had failed to have regard to all the relevant facts, in particular that the applicant’s entry to the church grounds was through an unlocked door and that the grille and door to the staff quarters had been left open.  It was contended that the applicant was an opportunistic burglar, who had not been in possession of any housebreaking equipment.  Finally, the court was asked to note that there was no ransacking of possessions or damage done.

6. Mr Pang accepted that the usual starting point taken for sentence for burglary of domestic premises was three years’ imprisonment[1]. However, he submitted that the judgment of the court in HKSAR v Sim Ka Wing[2] lent support for his submission that the conventional starting point taken for sentence can be lowered in the case of an opportunistic burglary.

7. In HKSAR v Cheung To Ming[3] this court quashed a sentence of 20 months’ imprisonment imposed in respect of a burglary of non-domestic premises, the Mai Po Marshes Wildlife Education Centre and Nature Reserve, which the appellant, a hungry illegal immigrant, had entered through an open door and stolen 2 packets of noodles which he consumed on the premises.  A sentence of 15 months’ imprisonment for remaining in Hong Kong without authority after having landed unlawfully, which was ordered to be served consecutively to the sentence imposed for the burglary, was not challenged.  Describing the applicant as a “sneak thief” this court adopted a starting point for sentence of 18 months’ imprisonment, for what it described as the “most unusual circumstances” of the commission of the burglary and, affording the applicant a one third discount for his plea of guilty, imposed a sentence of 12 months’ imprisonment for that offence.

8. In HKSAR v Law Tin Yam[4] and HKSAR v Kwok Wing Kam[5] this court quashed sentences of 16 months and 12 months’ imprisonment respectively for single charges of burglary and, having taken a starting point for sentence of 15 months’ imprisonment, imposed sentences of 10 months’ imprisonment on the respective appellants.  In the former case, the appellant had broken into the cubicle of a neighbour, in his absence out of Hong Kong, and stolen a packet of cigarettes.  In the latter case, the appellant, who was unable to sleep, had used a plastic card to force the lock on the door to a neighbour’s premises, entered and stolen a packet of lemon tea from the refrigerator.

9. In HKSAR v Chau Man Ying[6], the appellant was found guilty after trial of a single charge of burglary and sentenced to 2 years’ imprisonment.  He had entered what had been residential premises, which had been vacated pending redevelopment, and had stolen various small items, including two mobile telephones that had been abandoned in the premises by former residents.  Noting that no value had been ascribed to the mobile telephones, the court observed that they looked very old and assumed that they were worth very little.  Having observed that the appellant had been in custody for one year, this court imposed such sentence as permitted his immediate release.

THE SUBMISSIONS OF THE RESPONDENT

10. Mr David Chan, for the respondent, provided the court with copies of the ‘Summary of Facts’ which the applicant had accepted as the factual basis of his pleas of guilty on the three previous occasions on which he was sentenced by the District Court for various offences of burglary, namely on 6 July 2005 (2 charges), 24 April 2007 (4 charges) and 7 October 2010 (2 charges).  He invited the court to note that seven of the eight burglaries were committed during lunchtime.  The pattern of the commission of the offences was clear, namely that the appellant gained entry to premises that were not secured, for example a school staff room, a construction site office and the office of a lecturer at the Hong Kong Academy for Performing Arts.  If intercepted, he gave an exculpatory account consistent with his particular surroundings.  Also, Mr Chan pointed out that another pattern that emerged was that soon after his release from sentences of imprisonment for offences of burglary the applicant committed yet more offences of burglary.  He was a persistent offender, for whom it was appropriate to enhance sentence as a personal deterrence and also to protect the public[7].

A CONSIDERATION OF THE SUBMISSIONS

11. We reject the submission that the applicant’s commission of the burglary was ‘opportunistic’.  As counsel has pointed out, the CCTV film makes it clear that the applicant went to some lengths to avail himself of the opportunity to steal.  Having gained access to the church grounds by opening the gate to the premises the applicant walked some distance before reaching the Staff Quarters.  There, he was intercepted by Ms Tam and deflected from his purpose of stealing.  However, he was not put off, returning as he did a short while later and successfully entering the Staff Quarters.  He passed through the kitchen to the bedroom, where he stole the i-Pad and i-Phone.  He was on the church premises from 13:39 to 13:52.

12. The property that the applicant stole was of not inconsiderable value.  In fact, it is clear from the photographs of the premises that the applicant identified the i-Pad and i-Phone as the most valuable items of the various items of property left by Ms Tsang Ka Bo on the glass table and elsewhere in her bedroom.  No doubt, they were easily resold for cash.  Given the nature of the applicant’s conduct and the value of the stolen property, the commission of the burglary by the applicant is entirely different from the circumstances of the commission of the burglaries in the cases cited to the court by Mr Pang, for example the theft of noodles, the packet of lemon tea or valueless discarded items in the abandoned premises.

13. In all the circumstances, we are satisfied that the judge was entitled to take the usual starting point for sentence of 3 years’ imprisonment for the commission of a domestic burglary as the initial starting point for sentence.

14. Mr Pang was correct to acknowledge that the judge was entitled to enhance the starting point taken for sentence having regard to the applicant’s criminal record.  Mr Chan’s point is well made that the sentences of imprisonment imposed upon the applicant in 2005, 2007 and 2010 had no deterrent effect upon the applicant, given the fact that shortly after being released from prison on each occasion he embarked on yet further offences of burglary.  On 6 July 2005 the applicant was sentenced to a total of 26 months’ imprisonment for two offences of burglary; on 24 April 2007 he was sentenced to 3 years’ imprisonment for 4 offences of burglary.  Having been sentenced to 12 months’ imprisonment in the magistracy on 24 April 2009 for another offence of burglary, the applicant was sentenced on 7 October 2010 to a total of 28 months’ imprisonment for two further offences of burglary.

15. Having regard to what the judge correctly described as the applicant’s criminal record, namely as “appalling”, the enhancement of the starting point taken for sentence by only 3 months’ imprisonment was modest.  Indeed, we would not have interfered at the enhancement being greater.

Conclusion

16. In the result, we are satisfied that the sentence of 26 months’ imprisonment imposed on the applicant by the judge was entirely justified.  Accordingly, the application for leave to appeal against sentence is refused.

[1]   AG v Lui Kam Chi [1993] 1 HKC 215.

[2]  HKSAR v Sim Ka Wing (CACC 450/2000; unreported, 30 May 2001).

[3]   HKSAR v Cheung To Ming [2006] 2 HKLRD 259.

[4]   HKSAR v Law Tin Yam (CACC 258/2010; unreported, 19 November 2010).

[5]   HKSAR v Kwok Wing Kam (CACC 394/2010; unreported, 28 January 2011).

[6]  HKSAR v Chau Man Ying (CACC 439/2011; unreported, 15 May 2012).

[7]   HKSAR v Chan Pui Chi [1999] 2 HKLRD 830 at 834 A-C.