HKSAR v. PANG WAI KEUNG

CACC 460/2005

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

criminal APPEAL NO. 460 OF 2005

(ON APPEAL FROM DCCC NO. 944 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 18 October 2005, the appellant, aged 34, was sentenced to 2 years’ imprisonment having pleaded guilty to a single charge of burglary in the District Court before Judge Chua.

2.  All that we need to say at this stage about the facts of the case is to repeat from the judgment, when leave to appeal against sentence was granted by me on 3 February 2006, that this was a “well-planned and professional burglary carried out on or about 9 April 2003 at commercial premises”.  In such circumstances, a starting point of 3 years which the judge adopted, reduced to 24 months’ imprisonment to reflect the plea of guilty, would not normally be open to any criticism.  However, the circumstances which have arisen are somewhat unusual and require careful examination.

3.  The criticism of the appellant’s sentence stems from the fact that another defendant (D1), who pleaded guilty at the same time to this charge, was then still only part of the way through a lengthy term of imprisonment which had been imposed on 17 December 2003 in respect of six burglaries.  For this reason, the judge ordered that only 4 months of the 2-year sentence she imposed on D1 should be served consecutively to the sentence he was already serving.

4.  The appellant, however, was in a very different position to D1 because, on 12 August 2005, he had already completed a 30-month prison sentence (after trial) for a burglary committed later than the present offence and 1 month’s imprisonment consecutive for resisting a police officer in the execution of his duty.  This denied him the same opportunity as D1 of having any part of his sentence for the present offence made concurrent with any other sentence.  In other words, whereas D1 received the benefit of the totality principle and only had to serve 4 months of his sentence the appellant has been left having to serve the whole of his sentence for this burglary.

5.  Furthermore, the appellant argued that he had been denied the opportunity of receiving a shorter sentence, such as would have been the case if the present sentence had been made partially concurrent to his previous sentence, because the police had “delayed” charging him with the present offence.

6.  I granted leave to appeal against sentence on 3 February 2006 so that the respondent could provide the full court with the information it would need to determine both aspects of the appellant’s argument with a view to seeing whether his grievance was well-founded.  We are grateful to Ms Mary Sin, on behalf of the respondent, who has dutifully supplied us with all the material that was called for and we are particularly indebted to the officer in charge of the case for his detailed chronology of events which has enabled us to deal with the alleged delay in the overall context of what has taken place.  This, to a large extent, relates to the time taken by the Government Chemist to provide the forensic evidence on which this case depended.  We shall deal straightaway with this aspect of the case.

7.  The appellant and D1 were connected to the scene of the burglary by traces of their DNA which were found in swabs taken from two discarded soft-drink cans.  These DNA samples went to the Government Laboratory on 16 April 2003.  Almost a year later, on 6 April 2004, the DNA analysis revealed that these were DNA samples which originated from two men.  On 28 May 2004, the DNA data was entered into the computer for the purposes of comparison.  On 11 June 2004, this revealed that one of the samples matched D1’s DNA.  This result was checked by a senior member of staff before police were informed on 6 September 2004.

8.  The other sample was not of the same quality and produced a less conclusive result.  However, a process of elimination amongst D1’s associates then took place in an attempt to discover his accomplice.  The appellant was himself spoken to by the police on 24 March 2005 but he declined to answer their questions.  Quite rightly at that stage, the police regarded themselves as being in no position to suggest that the appellant’s DNA had been found at the crime scene.  He was not, therefore asked any questions which suggested he could be connected to the burglary by forensic evidence.  Then, on 26 May 2005, the appellant provided a DNA sample which, on 11 July 2005, was found to match the DNA on the other swab taken from the soft-drink can.  On 29 July 2005, the appellant was charged with burglary.  This was just fifteen days before the appellant completed his 31-month sentence, 30 months of which was for the burglary he had committed some time after the present offence.

9.  The point made by the appellant was that such a long delay could have been avoided if his DNA, which had been kept on record as part of the DNA database since at least the time of his conviction on 10 March 2004 when he received his 31-month sentence, had been used for comparison purposes.  This, however, does not fully answer the problem faced by the police because the sample from one of the soft-drink cans was less than conclusive and it was not possible to know whose DNA they should compare the sample with until their investigations had been completed.

10.  On 15 March 2005, police received information from a source which has quite properly not been revealed that the appellant may have been involved in the burglary.  Three days later, the Government Laboratory was asked to compare the appellant’s DNA stored in the database with the DNA profile obtained from the swab taken from the crime scene and, as soon as they had received confirmation that these matched, the appellant was asked, on 26 May 2005, to supply a saliva sample for DNA analysis in order to double-check the finding and to ensure, as is the usual procedure, that no mistake had been made.  Again, a match was obtained and, on 29 July 2005, within eighteen days of confirmation of the matching samples being received from the Government Laboratory, the appellant was charged.

11.  It will readily be seen from this chronology that the police had acted throughout with expedition and thoroughness.  There is no substance whatever to the complaint that the police were deliberately dragging their feet to ensure that the appellant received a longer sentence by letting him finish his earlier sentence before bringing him to court on the present charge.  The real delay occurred in the year which elapsed between 16 April 2003 and 6 April 2004, the time taken by the Government Laboratory to make a report on the two swabs containing the DNA samples taken from the soft-drink cans.  It is no criticism of the Laboratory that this occurred.  Urgent cases are invariably dealt with ahead of non-urgent cases and there was no reason for this matter to have been given any particular priority.

12.  Having said this, the judge in the lower court was unaware of these facts because no enquiry at that stage was made into them.  She was, however, aware that the appellant had very recently completed his 31-month sentence when sentencing him to a further 2 years’ imprisonment, but she does not appear in the appellant’s case to have addressed the question as to whether this was a matter to be taken into account despite the fact that D1 was being given (in the same proceedings) only a 4-month addition to the sentence he was currently serving.

13.  If the judge had enquired into why a burglary, which was committed on 9 April 2003, had taken over thirty months to come before her, by which time the appellant had served his sentence for the other burglary, we think that she should in the normal course of events have given the ‘delay’ factor some weight to the credit of the appellant.  To this extent, we consider that the appellant has made out a justifiable grievance.

14.  In passing sentence, the judge read out the appellant’s convictions, culminating in a 4½-year sentence for robbery in 1993.  The present offence was the appellant’s first burglary in time and the judge noted that he had been convicted (on 10 March 2004) of a burglary which was committed after the present offence.  She then noted that D1’s record was worse than the appellant’s, stating:

“Many of those convictions involved theft and you are now serving a 7 years and 8 months’ sentence for six counts of burglary.  You were sentenced in 2003.  You will be released in May 2007 whereas D2 [the appellant] has already been released from prison.” (Appeal bundle p. 6)

15.  Relying on the accuracy of the judge’s statement as to the length of D1’s earlier sentence imposed in the District Court, I made reference to this in the short judgment I gave when giving leave to appeal on 3 February 2006.  However, we now have D1’s record before us and it is quite apparent that the judge had miscalculated D1’s earlier sentence.

16.  Leaving aside the fact that a sentence of 7 years and 8 months would have exceeded the maximum term which the District Court has power to impose, there being no element of a breach of a suspended sentence involved, a correct addition of D1’s sentences results in a cumulative total of 6 years’ imprisonment, hence a possible early release date in 2007.  We cannot but fail to wonder, in such circumstances, whether the judge’s erroneous belief that D1 was serving 7 years and 8 months caused her to add only 4 months to his sentence, thinking that he would be left having to serve a combined sentence of 8 years’ imprisonment.  The mere addition of 4 months to D1’s sentence for so serious a burglary as this seems, with respect, to have been otherwise incomprehensible.  One of the questions we now have to ask ourselves is whether the appellant can benefit, as the result of the judge’s error in D1’s case, from the disparity thus created.

17.  The situation which has arisen is not unknown.  In R v Lung Wei-cheong CACC 293/1994, where a disparity was created between two defendants as the result of an error made in relation to one of them by the sentencing judge, the Court of Appeal stated that:

“… It may be that D3 was fortunate, in that the judge wrongly thought that he had pleaded guilty to the burglary at an earlier opportunity than the Applicant had tendered his pleas of guilty. But the fact that one defendant is the beneficiary of a mistake in his favour does not justify reducing the sentence on another defendant to give him the benefit of the same windfall.”

We are satisfied that this correctly sets out the principle to be applied in the situation which has arisen in the present case.

18.  We agree with the judge that a 3-year starting point, reduced to 2 years for his plea of guilty, was appropriate for this offence although normally for a burglary of commercial premises this would have attracted a starting point of 30 months.  Both of the victim-company’s metal safes were broken into during the night after a hydraulic jack had been used to bore a hole measuring 18 inches in diameter in the external wall of the office which, in turn, led to the storeroom where the safes were kept.  Property and money worth about $150,000 were stolen.

19.  In deciding sentence in the appellant’s case, the judge should, in our opinion, have considered at the outset what additional sentence the appellant might have received for this offence assuming that this burglary had either been included on the same charge sheet as the later burglary or had been dealt with during the currency of his earlier sentence.  In this regard, the time taken to bring this case to court, although the judge herself was ignorant of the reasons for the delay, demonstrates that through no particular fault of the appellant this burglary could have been heard during the currency of the earlier sentence if the forensic evidence had become available sooner.  In any event, we take the view that the totality principle ought to have been considered.  If it had been, we consider that the consecutive element in the present sentence ought to have been in the region of 18 months’ imprisonment, making a total of 4 years’ imprisonment for the two burglaries.  As it is, the appellant had served 30 months for the other burglary which followed a contested trial (excluding the additional month for resisting arrest) and he was sentenced on this burglary to 2 years’ imprisonment making 4½ years’ imprisonment in all for these burglaries.  The difference of 6 months’ imprisonment should in these circumstances, as a matter of principle, be recognised.

20.  Accordingly, this appeal is allowed and the appellant’s sentence is reduced by 6 months to 18 months’ imprisonment.