HKSAR v. HUI CHI TONG

CACC414/2007

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 414 OF 2007

(ON APPEAL FROM DCCC 918 OF 2007)

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REASONS  FOR  JUDGMENT

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Hon Barnes J (giving the judgment of the Court) :

1. The applicant faced two counts of burglary, contrary to section 11(1)(b) and (4) of the Theft Ordinance, Cap.210.  He pleaded guilty before Deputy District Judge Merinda Chow at the District Court.  Judge Chow adopted a starting point of 3½ years for each charge, reduced it by one-third to reflect the plea (28 months) and ordered 14 months of the 2^nd charge to run consecutively to the 1^st charge, making a total of 42 months. 

2. The applicant applied for leave to appeal against sentence.

3. After hearing submissions we granted leave to appeal and treated the application as the appeal proper.  We allowed the appeal, set aside the 28 months imposed on each charge and substituted each with 24 months.  We also ordered 6 months of 1^st charge to run consecutively to the 24 months imposed on 2^nd charge, making a total of 30 months. 

4. These are our reasons.

Admitted facts

5. The admitted facts disclosed that the applicant was spotted by a policeman performing anti-burglary duty when he entered a building at Elgin Street on 10 September 2007.  When the applicant emerged 15 minutes later, he was intercepted by the police.  The police found in the applicant’s possession various items including computer equipment, a camera and some foreign money.  Upon enquiry, it was found that the applicant had burgled a flat on the 5^th floor of that building.  The occupier of that flat confirmed the items (worth around $20,000) found on the applicant belonged to her (2^nd charge).

6. The applicant admitted the above offence under caution.  He also volunteered the information about another burglary committed by him at another flat several months earlier.  The occupier of that flat had earlier made a report to the police that his flat was burgled on 21 June 2007 and items including an I-pod, an I-pod speaker, and a rucksack (total worth around $5,000) were missing.  The applicant in a subsequent interview admitted his involvement under caution (1^st charge).

Background and mitigation

7. The applicant is a 33-year-old man with 11 previous convictions.   In August 1999, he was convicted of 10 offences relating to counterfeit banknotes, false instruments, handling stolen goods and deception and was sentenced to a total of 24 months’ imprisonment.  In May 2002, he was sent to jail for 2 years for an offence of attempted burglary.

8. In mitigation, it was stressed to the court that the applicant has kept out of trouble since his last conviction and sentence.  The applicant became unemployed when his employer moved the business to the Mainland and the applicant failed to adjust to life over the border.  The applicant committed the present offences when his friends pressed for repayment of money he borrowed after he became unemployed.  The applicant was remorseful and he voluntarily confessed to the 1^st charge.  His former employer wrote to say the applicant was a hard-working and responsible person and he would assist the applicant to find a job upon his release.

Reasons for sentence

9. Ms Corrine Remedios, counsel for the applicant, has very helpfully listed in her succinct written submission the factors relied upon by Judge Chow when passing sentence :

(a)      guilty plea;

(b)     motive was lack of employment and need to repay debt;

(c)     caught red-handed in the second burglary;

(d)     clearly a professional burglar;

(e)      three previous convictions, the last in 2002 was attempted burglary;

(f)      two year sentence failed to deter;

(g)     starting point for domestic burglary is 3 years after trial for a first offender;

(h)     for a persistent offender, deterrent sentence was necessary to protect the public;

(i)      considered HKSAR v. Wan Ho Kit, Lawence, CACC479/2000, unreported, 29 August 2001 and HKSAR v. Leung Tong and another, CACC412/2000, unreported, 28 February 2001;

(j)      starting point of 3½ years for each offence;

(k)     one-third reduction for plea, reduced to 28 months; and

(l)      applying totality principle, 14 months in 2^nd charge to run concurrently to 1^st charge, overall sentence 3 years 6 months.

Grounds of appeal

10. Ms Remedios raised essentially three grounds of appeal to say the overall sentence of 42 months was manifestly excessive :

(a)      the trial judge failed to give a sufficient discount for the fact that the applicant had volunteered the information resulting in his conviction of the 1^st charge;

(b)     the trial judge erred in enhancing the starting point for both charges when the previous convictions were 8 and 5 years prior to the present offences; and

(c)     the trial judge failed to take into account the circumstances of the present case when considering totality.

11. We do not think it necessary to reiterate Ms Remedios’s submission in full.  Suffice it to say that Ms Remedios disagreed with the judge’s findings that the applicant was a professional burglar or a persistent offender.  Ms Remedios submitted an enhanced starting point of 3½ years in relation to both charges was not warranted here as the applicant did not have a really ‘bad record’; nor could he be said to be a persistent offender — bearing in mind the 11 previous convictions were 8 and 5 years ago.  Ms Remedios also submitted Judge Chow had failed to give an appropriate discount to the applicant who volunteered the information leading to his conviction of the 1^st charge. 

Respondent’s response

12. Mr William Tam, Senior Assistant Director of Public Prosecutions for the respondent, has very helpfully set out in his written submission various authorities relating to burglaries (see Attorney General v. Lo Ching Fai [1996] 1 HKC 747; HKSAR v. Lau Hang Sang, CACC397/2000, unreported, 29 August 2001 and HKSAR v. Chan Li Fat (陳利發), CACC180/2005, unreported, 28 October 2005) and fairly conceded that in view of the circumstances of the present case, a total sentence of 42 months imprisonment was on the high side.  Mr Tam also conceded that the applicant could not be said to be a habitual offender.

13. Mr Tam accepted that the trial judge could have considered giving the applicant a further discount as the police would not have know the applicant was the culprit involved in that particular burglary but for the applicant’s confession, citing Secretary for Justice v. Tsui Kim Ming, Simon, CAAR4/1997, unreported, 16 July 1997 and HKSAR v. Ng Wing Chung (吳穎宗), CACC176/2005, unreported, 8 December 2005.  Mr Tam submitted that the discount should be limited to one or two months, and not on a proportional basis as in the case of a defendant giving positive assistance to the authorities. 

Discussion

14. For a burglary committed at domestic premises, the normal starting point is one of 3 years (see Lo Ching Fai (above)). 

15. In Lo Ching Fai, the appellant was in fact involved in two burglaries of domestic premises committed in daytime.  This court was of the view that an overall starting point of 3½ years was appropriate for a first offender when the sentences were made concurrent. 

16. In the present case, both burglaries were committed on domestic premises during daytime while the occupants were out.  Properties stolen in 1^st charge were not recovered while the occupant in relation to the second burglary suffered no loss.  There are no aggravating features in relation to the actual circumstances of the offences. 

17. As a general principle, a defendant should not be punished for pervious offences for which he has received his punishment.  An enhanced sentence may be imposed on a ‘persistent offender’ as a deterrent to protect the public (HKSAR v. Chan Pui Chi [1999] 2 HKLRD 830). 

18. We agreed with Ms Remedios that the background of the two applicants in Wan Ho Kit, Lawence (above)and Leung Tong and another (above) can be distinguished here.

19. In Wan Ho Kit, Lawence (above), the applicant has 13 previous court appearances with 47 previous convictions — 10 for theft, two for attempted theft, and one for handling stolen goods.  The trial judge adopted a starting point of 4 years and gave him the usual one-third discount upon his plea of guilty.  This court refused to grant leave to appeal against sentence. 

20. In Leung Tong and another (above), the two applicants burgled a ginseng shop and a dental clinic.  Properties worth over $59,000 were taken from the ginseng shop and about $8,000 taken from the dental clinic.  The 1^st applicant has 8 previous convictions, 5 of which were burglary or attempted burglary.  The 2^nd applicant also has 8 previous convictions, 6 of which were burglary or attempted burglary.  The trial judge recognised the usual starting point was 2½ years for a single charge of burglary on non-domestic premises.  He adopted a starting point of 4 years for both charges and gave both applicants the usual one-third discount.  On appeal, this court said the starting point was perhaps on the high side but not wrong in principle and refused to interfere with the 32 months imposed. 

21. In Lau Hang Sang (above), the applicant committed two burglaries at night while the occupants were asleep.  At the time he was on bail for drug trafficking and related offences.  He has 9 previous convictions including 1 for burglary in 1997.  The trial judge took a starting point of 3 years for each offence, gave the applicant the usual one-third discount upon plea of guilty, and ordered the sentences to run consecutively to each other, making a total of 4 years.  This court was not persuaded there was any merits in the applicant’s grounds of appeal but granted leave and reduced the total sentence to one of 3½ years on account of positive assistance given to the prosecution.

22. In Chan Li Fat (陳利發) (above), this court upheld a total starting point of 5 years and an actual sentence of 40 months for an applicant who had pleaded guilty to two counts of burglary.  The applicant was described as a habitual offender of very serious offences of dishonesty and violence, although he had no previous conviction of burglary. 

23. Although the applicant has 11 previous convictions including one of attempted burglary for which he was sentenced to 2 years in May 2002, we do agree he could not be described as a habitual offender.  

24. In all the circumstances of this case, adopting a global starting point approach as in the case of Lo Ching Fai (above), we believe a global starting point of 4 years for both charges to be appropriate.  Giving the applicant the usual one-third discount, the sentence would be 32 months. 

25. But for the voluntary confession, the applicant would not have been found guilty of 1^st charge.  Such voluntary admission, coupled with a plea later, showed genuine remorse.  It is in the public interest to encourage an offender to ‘own-up’ to his misdeed and to face the consequence.  The most effective way of giving encouragement is to give a greater than normal discount upon a plea.  In all the circumstances of this case, we are of the view that a further discount of two months is appropriate.

26. In order to achieve the overall sentence of 30 months, we set aside the 28 months imposed on each charge, substituted each with 24 months and we ordered 6 months of 1^st charge to run consecutively to 2^nd charge.