HKSAR v. HUANG SHIHFENG

CACC 208/2005

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

criminal APPEAL NO. 208 OF 2005

(ON APPEAL FROM DCCC NO. 293 of 2005)

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J U D G M E N T

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Stuart-Moore, VP (giving the judgment of the Court):

1.  On 21 April 2005, the appellant pleaded guilty before Judge Chua to a burglary of commercial premises from which property was stolen, including $12,600 and a camera.  The judge imposed a sentence of 16 months’ imprisonment to run consecutively to what remained of the 24-month sentence the appellant was then serving in respect of another burglary and a charge of failing to surrender to custody (DCCC 331/2004). 

2.  On 26 July 2005, I granted leave to appeal against sentence which, realistically, was directed at an examination of the order the judge made that the whole of the sentence with which we are now concerned should be served consecutively to the 2-year sentence imposed in DCCC 331/2004.

3.  The sentence of 2 years’ imprisonment being served by the appellant, arising from DCCC 331/2004, was in respect of a burglary of commercial premises committed on 6 August 2002.  The facts are not important save that on 8 August 2002 the appellant was granted bail until 12 September 2002.  However, he absconded and did not surrender to the police until 16 February 2004.  He pleaded guilty on 30 April 2004 to the burglary and a further charge of failing to surrender to custody for which he received sentences of 21 months and 3 months’ imprisonment respectively.  These were ordered to run consecutively.

4.  Returning to the present case, the appellant had been a suspect for the burglary, committed on 21 August 2001, following a preliminary DNA examination of a cigarette butt left at the scene.  However, when the appellant absconded following his arrest for the later burglary, the investigation was suspended.  After he had surrendered in connection with DCCC 331/2004, the police also arrested the appellant in regard to the present offence which at that time he denied.  This led to further investigations being conducted before police received confirmation that the DNA on the cigarette end matched the appellant’s DNA.

5.  These general background facts were known to the judge at the time of sentencing who commented that the delay in bringing this case to court was caused not only by the need to carry out a proper DNA examination but also because of difficulties which had arisen in locating, after such a long time, the person whose office had been burgled.  The judge, being mindful that the appellant was “due to be released in 2 months’ time” from the sentence imposed in DCCC 331/2004 said, when sentencing:

“	5.	The delay that was not occasioned by the defendant is a factor [defence counsel] asks me to take into account in sentencing him.  I think part of that delay is also the defendant’s fault.  At no time did he inform the police that he was the culprit in the present case.  Also, had he told the plea court of his intention to plead, an earlier date would have been found for him to be brought before the court.  Two days have been set aside for his trial today.
	6.	As you know, the starting point for burglary of office premises is 2½ years.  That is the starting point, and the sentence with your discount would have been 20 months.  Given the delay, which I take into account, I will discount it further by 4 months, and the sentence I impose on you is 16 months.  It will run consecutive to the sentence you are presently serving.” (Appeal bundle p.5)

6.  The appellant, who has served numerous prison sentences arising from his previous convictions for offences of dishonesty and violence, complained in his ground of appeal that he considered it unfair that he should have to serve the whole of his present sentence consecutively.  Of course, in saying this, he has ignored the fact that his present sentence has itself been reduced by 4 months to take into account the delay in prosecuting the case.  It also ignores the fact that, so far as delay is concerned, the appellant is to a great extent the author of his own misfortune.  In this regard, the appellant drew our attention to a letter which he sent to the police on about 26 October 2004 in which he requested the completion of this investigation so that he could be “released as soon as possible”.  It seems clear, however, that no plea of guilty had been indicated prior to the date of trial when 2 days were set down for the hearing.  As the judge had correctly pointed out, the appellant could have admitted this offence much earlier with the result that the case would have been dealt with sooner. 

7.  The two burglaries we have considered, committed almost a year apart, would inevitably have attracted a longer sentence than for a single offence of the same kind.  The question we have posed to ourselves is whether that sentence would have been in the vicinity of 37 months which is the totality received by the appellant for the two cases of burglary (excluding the 3 months he received for the wholly separate offence of failing to surrender).  This was probably on the high side but, having regard to the appellant’s contribution to the delay, we are satisfied that this cannot be regarded as manifestly excessive or wrong in principle.

8.  Accordingly, the appeal is dismissed.