HKSAR v. LIANG QINGRONG

CACC 24/2020

[2021] HKCA 276

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 24 OF 2020

(ON APPEAL FROM HCCC NO 336 OF 2019)

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J U D G M E N T

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1.  The applicant together with others were variously charged with a series of burglary offences. On 24 January 2020, following his plea of guilty to three offences of burglary, contrary section 11(1)(b) and (4) of the Theft Ordinance, Cap 210 (Charges 1, 2 and 3), and one offence of conspiracy to burgle, contrary to section 11(1)(a) of the Theft Ordinance and sections 159A and 159C of the Crimes Ordinance, Cap 200 (Charge 5), Deputy High Court Judge Johnny Chan (the judge) sentenced him to a total of 5 years and 6 months’ imprisonment.

2.  On 10 February 2020, the applicant filed a notice of application for leave to appeal against sentence, in which no substantive grounds were raised.  Despite a Court direction to the applicant that he file with the Court grounds of appeal and submissions by 21 September 2020, he has to date failed to do so. 

3.  The three burglary offences involved the applicant together with others burgling residential premises in the Sai Kung area on 23 and 26 September 2017 and 1 June 2018, respectively.  The conspiracy to commit burglary offence concerned the applicant together with three others conspiring between a day in February 2018 to 21 July 2018 to commit burglary.

4.  On 21 July 2018, police stopped a taxi in which the applicant and three others were passengers.  The occupants of the taxi sought to flee but were subdued by the police.  The applicant was arrested and cautioned, and in response admitted he together with the others intended to steal.  In subsequent cautioned interviews, the applicant admitted that he had unlawfully entered Hong Kong on three occasions to commit Charges 1 and 2, Charge 3 and Charge 5 respectively.  He explained that he stayed in a tent located in the hillside and committed the burglaries whilst remaining in Hong Kong.

5.  No meaningful mitigation was advanced on behalf of the applicant at the time of sentencing.  He had previous criminal convictions in Hong Kong.  In May 2012, the applicant was convicted of two offences of burglary and one offence of remaining in Hong Kong without the authority of the Director of Immigration and was sentenced to 4 years and 4 months’ imprisonment, which was reduced on appeal to 3 years and 6 months’ imprisonment.  In June 2012, the applicant was convicted of one offence of theft and was sentenced to 2 years and 6 months’ imprisonment, of which 20 months was ordered to be served consecutively to the sentence of the previous case.

6.  In sentencing the applicant, the judge adopted a starting point of 3 years’ imprisonment on each of the charges and identified the aggravating features of a joint enterprise in relation to Charges 1 and 2, warranting an enhancement of 6 months; the applicant’s previous similar criminal record in relation to Charges 1 to 3, and 5, warranting an enhancement of 6 months; ransacking of premises and causing distress to the victims in relation to Charges 1 to 3, and where the stolen property was of high value in relation to Charges 1 and 3, warranting an enhancement of 3 months for Charge 2 and 6 months for Charges 1 and 3; and the presence of a cross-border element in relation to Charges 1 to 3 and 5, warranting an enhancement of 6 months.  The judge reduced the starting points of each of the charges by one third for the applicant’s timely plea which resulted in a sentence on Charge 1 of 3 years and 4 months’ imprisonment, Charge 2 of 3 years and 2 months’ imprisonment, Charge 3 of 3 years’ imprisonment and Charge 5 of 2 years and 8 months’ imprisonment.

7.  The judge next addressed the totality of the sentences.  In his overall assessment of the case and in order to appropriately reflect the culpability of the applicant in respect of the four offences he took the view that a total term of 5 years and 6 months’ imprisonment was appropriate.  He then calibrated the sentences on each charge and in relation to each other to arrive at this total sentence.

8.  No complaint can be made of the ultimate sentence imposed on the applicant.  The starting point of 3 years’ imprisonment adopted by the judge in relation to the burglary offences was in line with the sentencing guideline in HKSAR v Lau Pang [2004] 3 HKLRD 565.  Furthermore, the judge was aware of the relevant authorities in relation to the aggravating features which he correctly took into account: HKSAR v Cheng Wai Kai, CACC 338 and 339/2007, 11 June 2008, HKSAR and Gao Changlu, CACC 25/2013, 16 August 2013.  The applicant should consider himself fortunate that the sentence he received was not higher.  He is a repeated offender who has come to Hong Kong from mainland China on a number of occasions to carry out serious crimes of burglary. 

9.  This application is devoid of merit and accordingly refused.

10.  The applicant is reminded of his right to renew his application for leave to the Court of Appeal, but he is also warned of the consequence of doing so, which may include a direction for any loss of time spent in custody pending his appeal, if the Court were to come to view that there was no justification for the renewal of his application.