HKSAR v. NGAI YIU CHOI

CACC 370 /2010

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 370 OF 2010

(ON APPEAL FROM DCCC 914 OF 2010 )

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BETWEEN

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REASONS FOR JUDGMENT

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Hon Yeung JA (giving the Reasons for Judgment of the Court):

Introduction

1.  The applicant, Ngai Yiu Choi appeared before Deputy District Judge G Lam on an indictment consisting of the 1^st charge of attempt burglary and the 2^nd charge of assault occasioning actual bodily harm. The applicant pleaded guilty to both charges and was sentenced to the respective terms of 2 years and 4 months to run consecutively, making a total sentence of 2 years and 4 months. Represented by Mr James Tze, the applicant sought leave to appeal against the sentence.

2.  On 25 May 2011, we dismissed the application and indicated that we would hand down our reasons in due course. This we now do.

The Facts

3.  The applicant, a man with 14 previous convictions, mostly for drug offences and offences of dishonesty, followed a resident into Lei Lung House in Lei Yue Mun Estate with a view to commit burglary.

4.  The applicant was well equipped, with a screwdriver for opening locks, and a spanner to break windows. He wore gloves as well as a surgical mask.

5.  The applicant cut the padlock of a window to have access to the 1^st Floor podium. The applicant broke the window glass of Room 106, but was unable to enter as the window was locked. A resident of Room 116 on the same floor (Madam Lo) saw the applicant standing on the podium just outside her flat and was apprehensive as to what he was doing. She reported the incident to a security guard, Mr Chan.

6.  When Madam Lo and Mr Chan went to the window leading to the podium on the 1^st Floor rear staircase, the applicant suddenly came in via the window from the podium. He used a spanner to attack Mr Chan, causing him minor injuries to his right hand when Mr Chan tried to ward off the attack.

7.  With the assistance of Madam Lo’s husband who responded to his wife’s call for help, the applicant was subdued. However, after less pressure was used on him, the applicant tried to escape by running down the staircase. The applicant was finally intercepted by another security guard and the matter was reported to the police. The applicant said he committed burglary because of his drug addiction.

Reasons for Sentence

8.  The judge adopted the usual starting point of 3 years’ imprisonment for the attempted burglary charge and 6 months for the assault charge. The judge pointed out that it was a serious matter to attack a security guard who was performing his duties with a spanner. The judge also pointed out that it was fortunate that Mr Chan only suffered minor injuries.

9.  The judge reduced the starting points by one-third on account of the guilty pleas and ordered them to be served consecutively, making a total sentence of 2 years and 4 months.

Grounds of Appeal

10.  Mr Tze, on behalf of applicant, did not challenge the 3-year starting point for the attempted burglary charge, but suggested that the 6-month starting point for the assault charge was manifestly excessive in the circumstances of the case and in light of the “applicant’s previous similar record”.

11.  Mr Tze complained that the judge had not taken into consideration the fact that the injuries suffered by Mr Chan were relatively minor. He also suggested that the sentence on the 1^st charge of attempted burglary could be lowered on the basis that resident of Room 106 was not frightened or alerted by the applicant’s act.

Discussion

12.  We were surprised by Mr Tze’s reference to the applicant’s previous records. Of the applicant’s 14 previous convictions, four were convictions for robbery, one for fighting in a public place, one for assault occasioning actual bodily harm, and one for common assault. The applicant had repeatedly committed offences of dishonesty and violence and he certainly was not a man of good character to justify any leniency.

13.  The offence of assault occasioning actual bodily harm can be committed in various circumstances and there is no tariff sentence. Sentence depends on the facts of each case and therefore sentences in other similar cases provide little assistance.

14.  The applicant, in an attempt to escape from lawful apprehension, used a spanner, a potential lethal instrument, to attack Mr Chan who was performing his duties as a security guard and was obviously not prepared for the attack. It was simply wrong to say that the judge had not paid sufficient regard to Mr Chan’s relatively minor injuries. If Mr Chan had been more seriously injured, the applicant would be facing a much heavier sentence than the 4 months for the assault charge.

15.  The 4-month sentence on the 2^nd charge, after a one-third discount from the 6-month starting point for the guilty plea, far from being manifestly excessive, was a lenient sentence with no room for further reduction.

16.  Mr Tze accepted that the starting point adopted by the judge on the 1^st charge is appropriate and correct. However, he suggested, relying on HKSAR v Lee Wai Shing (unreported CACC 177/2006), that “the persons in the subject premises was not frightened or alerted by the act of the applicant”, and therefore the normal starting point could be lowered.

17.  The defendant in Lee Wai Shing (supra)walked past a unit in a housing estate and tried to push open the metal grille before using a screw driver to prise open the wooden door. The Court of Appeal (differently constituted) took the view that what the defendant did would be less likely to alert the people inside the premises and on that basis reduced the usual 3-year starting point by three month to 2 years and 9 months.

18.  The applicant was a professional burglar. He was equipped with a spanner, a screwdriver, a pair of gloves and a surgical mask. He broke open the window to access the podium. Although there was no one in Room 106 that the applicant tried to burgle by breaking its bedroom glass window, what he did alerted a neighbor Madam Lo to the extent that she found it necessary to report to the security guard. The suggestion that “the persons in the subject premises was not frightened or alerted by the act of the applicant” in the circumstances of this case was not a mitigating factor at all.

Conclusion

19.  In our view, the judge was right to adopt the respective starting points for the two charges as he did. The judge was also right in ordering the two sentences to run consecutively.

20.  The total sentence of 2 years and 4 months was not manifestly excessive and the application for leave to appeal against sentence was therefore dismissed.