HKSAR v. KHAN ASIF

CACC 83/2009

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 83 OF 2009

(ON APPEAL FROM DCCC NO. 745 OF 2007)

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BETWEEN

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J U D G M E N T

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Hon Stock VP (giving the judgment of the Court):

The issue

1.  Section 11(1)(a) of the Theft Ordinance Cap. 210 provides that “a person commits burglary if he enters any building or part of a building as a trespasser and with intent to commit any such offence as is mentioned in subsection (2)”.

2.  The question engaged by this application is what constitutes an entry for the purpose of s. 11(1) of the Ordinance; in particular, whether an entry is effected by the intrusion into a building of any part of the body however small.

The facts

3.  The facts found by Deputy District Judge Sham were that on the night of 23 December 2006 the applicant, with another man, was wandering about a rear lane in New Street, Central. They acted furtively and looked up at an open window of a building in the lane. The men then walked to one end of the lane, looked around, and then went back into the lane where the applicant’s companion lifted him up to the level of the open window. The applicant held on to the window sill, so the judge found, “popped his head in through the window, remained in that position for five to six seconds, withdrew his head to look back down to his companion; then did the same thing again … popped his head into the window [and] remained there for five to six seconds.” At this stage, a pedestrian walked past the junction of the rear lane with Hollywood Road. A police officer who had hidden himself nearby and was observing what was happening, said in evidence that the applicant’s companion sensed that someone had walked past nearby. Be that as it may, the applicant withdrew his head and descended and the two men walked out of the lane into Hollywood Road where they were intercepted by two other police officers.

4.  The premises in question housed a godown to a rice shop.

Findings and sentence

5.  The judge held that a partial entry sufficed and that when the applicant inserted his head into the shop he intended to steal whatever there was in the shop that might prove worth taking. Accordingly, on 3 March 2009, the judge convicted the applicant of the first charge, namely, burglary.

6.  There was a second charge, with which we are not concerned, namely failing to surrender to custody without reasonable cause, contrary to s. 9L of the Criminal Procedure Ordinance, Cap. 221, to which the applicant pleaded guilty.

7.  In relation to the burglary offence, the judge sentenced the applicant to 30 months’ imprisonment. For the second offence, he sentenced the applicant to two months’ imprisonment which he ordered to run consecutively to the sentence imposed on Charge 1, making a total of 32 months’ imprisonment.

8.  The applicant now seeks leave to appeal against his conviction for burglary and against sentence.

9.  On 13 November 2009 we granted the applicant legal aid. That was because the authorities to hand seemed not to speak with one voice as to what constituted an entry for the purpose of the offence of burglary and we thought it desirable for the matter properly to be argued. To this end we have had the assistance of Mr Ross for the applicant and Mr Leung for the respondent.

Analysis

10.  Before the enactment in England of s. 9 the Theft Act 1968 (the relevant provision of which is in the same terms as s. 11 of the Theft Ordinance), the common law rule was that the insertion into premises of any part of the body, however small, was sufficient to constitute an entry.

11.  At common law, burglary came to be defined as breaking and entering the dwelling house of another in the night, with intent to commit a felony therein, whether such felony be actually committed or not: see Kenny’s Outlines of Criminal Law 18^th ed., p. 244. That definition was adopted in England by the Larceny Act 1916, though by that provision burglary was extended to include breaking out of the dwelling house of another having entered with intent to commit a felony.

12.  In R v John Davis (1823) R. and R.498, the defendant was a little boy who had pushed his finger against a pane of glass in the corner of the window of a dwelling house. The glass was pushed inside by the force of the boy’s finger and the forepart of the finger was seen on the shop side of the glass. The boy was convicted by the jury but the judge had some doubt whether this was an entry sufficient to make the offence a burglary and so submitted the case for the consideration of the judges. They held that there was a sufficient entry to constitute burglary.

13.  The same approach was taken in R v Bailey (1818) R. and R. 341 where the defendant broke a pane of glass and introduced his hand to undo a latch by which the window was fastened. This was held to be a sufficient entry to constitute a burglary. So too in R v Gibbons ((1743 – 1761) Fost. 107, the defendant cut a hole in the window-shutters of a shop and put his hand through the hole in order to remove things which hung in the shop within his reach. The court, comprising the Lord Chief-Baron and two other judges, held that “… if any part of the body be within the house, hand or foot, this at common law is sufficient.”

14.  It is otherwise where the test is whether somebody has been “found in [a] building”; the test which was required by section 28 of the Larceny Act. In such a situation a person who put his hands through a window for the purpose of putting himself into the building could not be said to be in the building: see R v Parkin (1949) 34 Cr App R 1.

15.  What appears to have injected a degree of uncertainty to the test for entry was the decision of the English Court of Appeal in R v Collins [1973] 1 QB 100. The case is cited in Archbold Hong Kong 2010 at para. 22-90 for the proposition that ‘what had to be proved was that the defendant made an “effective and substantial” entry into the building’ although the text goes on to cite R v Brown (V) [1985] Crim L R 212 for the suggestion made in that case that the word “substantial” used in Collins did not assist, leaving, therefore, one to determine whether an entry had been “effective”.

16.  The phrase “effective and substantial” in Collins has been doubted as an appropriate test in determining what amounts to an entry for the purpose of the offence as defined in the 1968 Act. It seems to us that the import of the phrase, which emerged in an ex tempore judgment, has been carried beyond what was intended.

17.  The issue in Collins was not the issue in the present case. By virtue of s. 9(1)(a) of the Theft Act 1968 a person is guilty of burglary if he enters a building, or part of a building as a trespasser and with intent to commit rape therein. What happened in that case was that the complainant sat up in bed one night and saw the defendant undressed and crouched by the windowsill of her bedroom. She assumed that he was her boyfriend and allowed him into the room, there to have sexual intercourse with her. He conceded that when he went up the ladder towards her bedroom window he had made up his mind that he was going to have intercourse with her whether she consented or not. But what had to be proved if he was to be convicted of burglary was that at the stage he entered the building, he did so as a trespasser. What therefore had to be decided was where he was when the complainant invited him in: if he was outside the window when this happened then he was not a trespasser when he entered the room; if on the other hand he entered the premises before she saw him and invited him to her, then at the time of entry he was a trespasser and guilty of the offence. It is clear from the judgment that if, at the stage of the invitation, he was “already inside the room, having climbed through the window frame and kneeling upon the inner sill” he had already then entered. If on the other hand he was kneeling on the sill outside the window, he had not. As the court said at p. 105F, “the pivotal point of this appeal is whether the Crown established that this defendant at the moment that he entered the bedroom knew perfectly well that he was not welcome there or, being reckless as to whether he was welcome or not, was nevertheless determined to enter.”

18.  So the issue in the case was not what constituted or what did not constitute entry; nor whether entry of part of a body constituted entry to a building. It was a case that turned on the determination of where he was when permission was granted by the complainant to approach him; and it was in that context that the Court said, at p. 106, that:

“Unless the jury were entirely satisfied that the defendant made an effective and substantial entry into the bedroom without the complainant doing or saying anything to cause him to believe that she was consenting to his entering it, he ought not to be convicted of the offence charged.”

19.  In short, the court was not considering the issue for which the passage has too often been deployed, namely, what is it that constitutes entry for the purpose of the offence of burglary.

20.  The thrust of commentaries on Collins and on the present state of the law is that too much has been made of the passage; and, much less uniformly, that the old common law position applies, namely, that the insertion of any part of the body, however small, is sufficient.

21.  Part of the Collins test was retained and part relinquished as superfluous in R v Brown [1985] Crim L R 212, the full report of which reveals the conclusion that ‘the judgment [in Collins] was not about what is in issue here, namely, what can constitute an entry, in given circumstances, for the purposes of the subsection.’ In Brown, the appellant had been seen partially inside a shopfront display with his feet on the ground outside. The suggestion was that he had not entered the building since his body was not entirely within it. The appeal was dismissed, the court remarking that the use of the word “substantial” in Collins “did not materially assist in the matter, but a jury should be directed that, in order to convict, they must be satisfied that the entry was “effective”.”

22.  The commentary to Brown in the Criminal Law Reports reflects upon debate following the decision in Collins, with some wondering whether Collins intended to reject common law authorities which had held that “the insertion of any part of the body, however small, was a sufficient entry for burglary, even for part of the little boy’s finger through the glass of a shop window (Odgers [1972A] C.L. J. 194).” Other commentators, however, had noted “that Parliament had intended the Theft Act 1968 to embody the common law of entry… . Thus it was concluded that ‘probably the safest and best course is to assume the continued existence of the common law rule’ (Smith The Law of Theft (5^th ed.), p. 166), possibly subject to the exclusion of ‘cases of minimal entry’ (Griew, The Theft Acts 1968 and 1978 (4^th ed.), p. 75.” The commentator submitted:

“ … that the old rule does indeed provide a better test than does any attempt to give ‘effective and substantial entry’ some alternative legal content.  In a case like the present it is undoubtedly tempting to give ‘effective’ the meaning of ‘such as to put the defendant in the position where he can commit the ulterior offence intended’- i.e. reaching his arms through the window is ‘effective’ because it enabled him to steal goods.  But such a meaning could not be applied in all cases: the would-be rapist who walks through the front door is obviously guilty of burglary before he locates his victim in the attic, and what if she is not at home, with the result that his entry can never be ‘effective’!  Perhaps such a meaning could be employed if ‘effective’ and ‘substantial’ are used as alternatives in the test, rather than cumulatively.  Then an effective entry would not have to be substantial (an advantage where only a hand is inserted to steal), nor would a substantial entry have to be effective (an advantage where an entry cannot be ‘effective’).  Not a bad test, perhaps, but not what was intended in Collins.  In so far as both terms must be satisfied, the only practicable solution is to regard ‘effective’ as relating to the entry itself, and thus to be to all intents and purposes synonymous with substantial (“was he effectively, substantially, within the building”) and then to regard both terms as qualifying the common law rule if at all, only to the extent of excluding cases of minimal entry.”

23.  In The Theft Acts ( 7^th ed.) para. 4 –18 Professor Griew says of Collins and of Brown that:

“Too much has been made of this unelaborated dictum in an extempore judgment; and the court in Brown happily made plain that the word “substantial” does not assist.  The word “effective”, with respect, is not much more helpful.  It might be understood to suggest in one kind of case that it is necessary to be more or less completely in (was he “effectively” in?) and in another that it is enough if a slight degree of intrusion permits an attempt at the ulterior offence (was it “effective” to allow him to attempt theft?).  The results in both cases may be sound; yet they will be achieved by giving different meanings to a word that does not appear on the statute.

Under the law of burglary and related offences replaced by section 9, the intrusion into the building of any part of the body, however small, satisfied the requirement of an entry.  The court might in Brown have adopted the same simple rule.  It did not do so; and its judgment is explicable only on the basis that the rule has not survived.  If that is right, we are left in need of further authority, preferably in firm terms that will make for uniformity of decision, to supplement our understanding of the range of cases in which a person “enters” a building although part of him remains outside.  It might with advantage be clearly laid down that a person has “entered” a building (or part of a building) not only when he is entirely inside the building (or part) but also (i) when he has intruded so far into the building (or part) that he may be described more properly as inside it than as outside; or (ii) when his intrusion into the building (or part) suffices to permit him to attempt the intended offence … or to commit a relevant attempt… .”

24.  Griew also refers in a footnote (at p. 104)to Watson (1989) 89 Cr App R 211 where at 214 Lord Lane CJ seems in an obiter comment to have assumed that burglary is committed when a foot crosses the threshold or window sill; and in Smith & Hogan Criminal Law 12th ed., p. 907, the authors suggest that cases after Collins do not support the “effective and substantial entry” test.

25.  The suggested test, referred to by the commentator to the report in Brown, namely, whether the intrusion sufficed to enable an attempt at theft was rejected in R v Ryan [1996] Crim L R 320 where the defendant had his head and one arm inside the window where he found himself trapped. It was held that “a person could enter a building even if only part of his body was actually within the premises and it was totally irrelevant whether he was or was not capable of stealing anything because he was trapped halfway through the window.”

26.  The commentary to Ryan is by no less an authority than the late Professor Sir John Smith:

“In the light of Brown and [Ryan] it seems impossible to insist that the entry must be “effective” or “substantial” as Edmund Davies LJ suggested in Collins. It is in principle unsatisfactory that it should be left open to a jury to find that there was no entry in a case like the present; and it would be better to recognize that the 1968 Act leaves unaltered the rule of common law that the insertion of any part of the body, however small, is sufficient.”

27.  We respectfully agree with that analysis. The terminology of the 1968 Act is reflected in the Theft Ordinance and we do not think that it was intended thereby to alter the common law rule. It is a rule that makes for certainty and does not offend the intrinsic justice of the matter, especially if one remembers that the offence is not complete unless there is also a trespass and an intention to commit an offence specified in subsection (2). It seems to us that the act against which the statutory provision is directed is a deliberate and uninvited intrusion upon private premises with an intention to steal, or to commit one of the other offences referred to in subsection (2). The entry which the statute has in mind is a wilful intrusion upon private space and though the intrusion upon that space may in a particular instance be less than in another instance, it is an intrusion nonetheless.

28.  Mr Ross advanced the further suggestion that a trespass to property can only occur if there is physical contact with the property and that since in this case there was no physical contact with the inside of the premises, there was no trespass and therefore no burglary. The point might have some traction if we were concerned with trespass to goods, but we are not. An intrusion of air space over land is a trespass, save where the intrusion is at a height at which use or enjoyment of the land is not affected (see Winfield and Jolowicz on Tort (17^th ed.) para. 13-7); a fortiori an intrusion within a building where there is no physical contact with the structure. So, for example, few would doubt that a wire-hanging feat in the mode of Mission Impossible would, absent consent of the lot owner, be a trespass.

29.  Next, Mr Ross argued that, if there was an entry, there was insufficient evidence that the applicant intended at the time of entry to steal. The evidence was, he contended, equally consistent with an intention to return to the scene at some later stage in order to steal. The applicant did not give evidence at trial, nor did his companion. The men had gone to the trouble of having one of them hoisted up to a shop window where they had no lawful business, in a quiet lane, at night. Whether termination of the escapade was the result of fear of the passerby or the fact that a godown for a rice shop offered little further temptation matters not for present purposes. There was ample evidence from which the judge could safely conclude that at the time of the initial entry, limited though it was, there was an intention to steal if anything worthy of theft presented itself. We are satisfied that there is nothing in this point.

Conclusion

30.  The question what constitutes an entry for the purpose of s. 11 is one that was clearly arguable and, accordingly, we grant the applicant leave to appeal against conviction and treat the hearing of the application as the appeal. However, for the reasons we have provided, the appeal against conviction is dismissed.

Sentence

31.  The standard sentence after trial for burglary of non-domestic premises is 2½ years’ imprisonment: HKSAR v Sim Ka Wing (CACC No 450 of 2000).

32.  This applicant was aged only 21 years of the date of this offence, but has a number of previous convictions including offences of theft though, at the date of the offence, not sufficiently severe in nature or lengthy in number to warrant an aggravation of sentence.

33.  The judge noted that this was a case of two men intending to burgle property, the fact that the applicant was acting in concert with another man being an aggravating feature. This was, he found, not an opportunistic escapade, and he deemed it appropriate to impose a sentence of 2½ years’ imprisonment for the burglary offence.

34.  We notice that it was not the arrival of the police that put a halt to entry into the premises. It is not clear whether it was the fact of the passerby in Hollywood Road (not in the lane itself) that brought the illicit adventure to its end or the fact that nothing worthy of theft was seen. In the circumstances, the benefit of that doubt must be accorded to the applicant, that is to say, sentencing should not proceed on the basis that but for the advent of the passerby in Hollywood Road, they would have pursued their entry into the premises and have taken away goods. Sentence should proceed on the basis that there was minimal entry into the premises for the purpose of stealing therein if there was anything worth stealing and that it was decided then to abandon the escapade.

35.  Sentencing must be sensitive to the particular facts of the case and we do not think that a 2½ years’ imprisonment is warranted by these particular facts though we emphasise that the fact that we depart from the standard tariff is because of the somewhat unusual facts of this case; it is not to be taken as an approach to be adopted simply because, in a particular event, goods are not in fact stolen.

36.  On the facts of this case, we consider that an appropriate sentence is one of 18 months’ imprisonment. Accordingly, in relation to the first charge, that of burglary, we grant the applicant leave to appeal against sentence, treat the hearing of the application as the appeal, set aside the sentence of 30 months’ imprisonment in relation to the burglary offence and substitute therefore a sentence of 18 months’ imprisonment. The sentence of two months’ imprisonment for the second offence remains undisturbed as does the order of the judge that it should run consecutively to the sentence imposed for the offence of burglary. This means that the overall sentence effected by the orders we now make is one of 20 months’ imprisonment.