HKSAR v. CHEN TING FANG

CACC221/2007

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 221 OF 2007

(ON APPEAL FROM DCCC NO. 109 OF 2005)

------------------------

------------------------

----------------------------------------------------------

J U D G M E N T

----------------------------------------------------------

Hon Lunn J (giving the reasons of the court) :

1. The applicant, who appeared in person, renewed his application before the court for leave to appeal against conviction and sentence, it having been refused by Yeung JA on 14 November 2007.

Trial

2. On 5 June 2007, the applicant was convicted after trial in the District Court by HH Judge Yau of a single count of burglary, for which he was sentenced to three years’ and three months’ imprisonment on 26 June 2007.  The trial was of short compass, only the victim of the burglary and the applicant giving oral evidence.  The property stolen in the burglary was about HK$1,500, RMB 2,200 and a digital camera.  The burglary was of domestic premises at Room 3207 of Yat Hei House, Tung Hei Court, Shaukeiwan.

The prosecution case

3. In his reasons for verdict the judge noted that in the prosecution case Mr Hung, the victim of the burglary, had testified that he had employed the applicant to carry out renovation work at his residence at Room 3015 of Yat Hei House.  To permit that work to be done Mr Hung and his mother had vacated the premises and moved to Room 3207 in October 2006.  On 7 November 2006, with the assistance of the applicant, the lock to the iron grille of the latter premises was changed and new keys provided to Mr Hung and his mother.  On 21 November 2006, Mr Hung became aware that his set of those keys were missing.  On 30 November 2006, he discovered that the items the subject of the charge were missing from those premises, he having placed the cash there on 26 November 2006.  There were no signs of forced entry to the premises.  It was an admitted fact that on 28 November 2006, the applicant has pawned the camera, the subject of charge, at a pawnshop.

The defence case

4. In his evidence the applicant testified that on 28 November 2006, he had pawned the camera in Mongkok at the request of his employee,  Mr Wong, who was working together with him on the renovation of the premises at Room 3015.  The applicant testified that it was convenient for him to do so because he was buying a new door for those premises that day in Mongkok.  Mr Wong told him that he needed money in order to finance a trip back to the Mainland.  At that time, Mr Wong had worked for the applicant for more than a year.  However, after that day he had never seen Mr Wong again and had come to learn of the theft of the camera and money.  He had tried to locate Mr Wong on many occasions but had failed.

Reasons for verdict

5. In his reasons for verdict the judge found the applicant not to be “an honest and reliable witness”, in consequence of which he rejected his testimony.  In doing so, he found the applicant’s testimony for his becoming involved in the pawning of the camera on behalf of Mr Wong as “unreasonable” and “not necessary”.  He found the applicant’s evidence that, although he had employed Mr Wong for over a year, he had never inspected his identity card as “hard to believe”.  Also, he stated that he found the applicant’s testimony of his knowledge or otherwise of the telephone number and address of Mr Wong as contradictory.

6. On the whole of the evidence the judge found that the theft of the property, the subject of the burglary charge, had occurred on or after 26 November 2006 and before 28 November 2006, the latter being the date on which the applicant had pawned the camera.  Given the absence of signs of a forced entry to the premises, the judge drew the inevitable inference that entry had been made by use of a key to the premises.  He found the applicant to be the person in a position to have obtained a copy of the key, either at the time that he assisted Mr Hung in obtaining a new lock for the grille or at the later date on which Mr Hung had lost his keys, which findings supported that the finding that the applicant was the thief of the camera and money.

7. Of the evidence that at an earlier stage in the renovation work, Mr Hung had permitted the applicant to store his tools in Room 3207 the judge found, nevertheless, that entry of the applicant to the premises was only for the purpose of retrieving those tools and only done in the presence of Mr Hung.  In the result, he found that the applicant was and knew himself to be a trespasser in the premises at the time of the theft.

Reasons for sentence

8. In determining the appropriate level of sentence to impose upon the applicant, the judge noted that he was a man of 49 years of age and that his conviction in 1997 for the offences of aiding and abetting the employment of a person not lawfully employable was an offence in a category quite different from that of burglary.  Otherwise, the applicant, who had been in Hong Kong since 1978, was of good character.

9. The judge went on to observe, correctly, that this court had indicated on a number of occasions that a starting point of three years’ imprisonment was appropriate for burglary of domestic premises, even for a first offender.  He noted that a factor of aggravation in the commission of the offence by the applicant was his breach of the trust reposed in him by Mr Hung in employing him in the renovation of his home and granting him access to those premises and Room 3207.  As a result, the judge stipulated that he took a starting point of three years’ and three months’ imprisonment.  Finally, the judge determined that there was no proper basis upon which that starting point could be reduced.

Proposed ground of appeal against conviction

10. The applicant proposes to rely upon a ground of appeal against conviction based on the assertion that on the evidence, in particular, the evidence that from time to time he was permitted to enter Room 3027, the offence he committed was one of theft and not burglary.

A consideration of the proposed ground of appeal

11. There is no doubt whatsoever that the judge was entitled to find that the applicant was not only a trespasser in Room 3207 at the time that he stole the goods, the subject of the charge, but also that he knew that to be the case.  His permission to enter Room 3207 was circumscribed as the judge stipulated.  In consequence, as the judge found, at the time of the theft, the applicant was a trespasser on the premises and all the ingredients of the offence of burglary were proved.  In the result, there is no merit in this proposed ground of appeal against conviction.

Proposed ground of appeal against sentence

12. In his proposed ground of appeal against sentence, the applicant takes issue with the judge’s determination that the circumstances of the commission of the offence of burglary involved a breach of trust.  As a result, he contends that the sentence of three months’ imprisonment imposed over and above the sentence of three years’ imprisonment, which the judge indicated was the appropriate guidelines sentence for an offence of domestic burglary, was excessive and wrong in principle.

A consideration of the proposed ground of appeal against sentence

13. There is no doubt whatsoever that the judge was perfectly entitled to determine that the applicant enjoyed a relationship of trust with the victim, Mr Hung.  In consequence of that relationship of trust, he had been permitted entry to the premises that were be renovated, had been asked to assist in the replacement of the lock to the grille of Room 3207 and had been permitted to store his tools in the room during the renovation.  It was this relationship that gave the opportunity to the applicant, as the judge found, to “… have picked up the keys which Mr Hung lost or he could have secured the key or duplicated the key to the iron grille when he helped Mr Hung to engage a locksmith to replace the lock on the iron grille.”

14. The judge was entitled to regard this breach of trust as an aggravating feature in the commission of the offence and to reflect it, as he did, by the addition of three months’ imprisonment.  There is no merit in the proposed ground of appeal against sentence.

Conclusion

15. There being no merit in the applicant’s proposed grounds of appeal against conviction or sentence, his applications for leave to appeal against conviction and sentence are refused.