HKSAR v. TSANG LEUNG KWAN AND ANOTHER

CACC 368/2002

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 368 OF 2002

(ON APPEAL FROM DCCC 498 OF 2002)

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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 10 July 2002, the Applicants (D1 and D2), aged 44 and 42 respectively, pleaded guilty in the District Court, when they appeared before Deputy Judge Yau, to a joint charge of burglary. They were each sentenced to two years and eight months' imprisonment against which they now seek leave to appeal.

2. The facts were very straightforward. The Applicants were seen at about 2.00 a.m. on 12 April 2002 alighting from a taxi in Lan Fong Road in Causeway Bay and walking to another taxi parked nearby. The boot of this taxi was open and D2 removed from it two objects which looked like rods. He concealed these under his clothing. D1 and D2 then crossed Lee Garden Road and entered a rear alley leading to the back door of the Tai Hing Roast Meat Restaurant located on the ground floor of 55 Lee Garden Road.

3. Police officers, a short time later, entered the alleyway and as they arrived at the rear door they noticed a large hole in it. The police went inside and found D1 and D2 standing at the cashier's counter each of them wearing a pair of gloves. D1 was holding a torch and a screwdriver and D2 held a crowbar. They were both arrested.

4. Marks were found on the metal safe inside the premises. The restaurant supervisor, who was later called to the scene by the police, confirmed that after the restaurant was closed at about 11.00 p.m. the previous evening, she had placed the cash takings into the safe and then locked it. She also locked the front and back doors when she left the premises that night.

5. In passing sentence, the judge remarked:

"According to the sentencing guidelines laid down by the Court of Appeal, the proper starting point for burglary of non-domestic premises is 21/2 years' imprisonment. It is of no doubt that the burglary in the present case was carefully planned and executed. The two accused took along tools to the scene of the crime and during the course of the offence they both wore labour gloves. The purpose was of course to avoid leaving fingerprints behind. They also chose the small hours of the day to carry out the crime. This was obviously to ensure that they would not be discovered easily. It is beyond doubt that the offence was not a mere random, opportunistic act committed out of momentary greed.

The 1st accused has three previous convictions for burglaries and has been imprisoned on all three occasions. However, he still has not learnt a lesson and has failed to mend himself. While the Court should not punish the 1st accused for these previous convictions, the fact that he committed a similar offence again must show that he had no respect for the law at all. It is also obvious that the punishments imposed in the previous convictions had not deterred him from repeating his evil deeds.

For this reason and for the observation of the Court about the well-planning of the present offence, the court is of the view that a starting point higher than that of the guideline is warranted. The Court thus takes 4 years' imprisonment as the starting point in this case for the 1st accused.

The 2nd accused has a previous conviction of burglary in 1991 and attempted burglary in 1997. For the later one he was sentenced to 21 months' imprisonment. Again, he had not reformed himself after release from prison. To the amazement of the court the 2nd accused, despite not being a Hong Kong citizen, managed to acquire a chain of previous convictions in Hong Kong. I am quite sure that if the Hong Kong SAR Government had the power to control the entry of permit holders into Hong Kong, the entry of the 2nd accused would definitely be refused. His sole purpose of coming to Hong Kong is to offend the law of Hong Kong. As pointed out in mitigation, his purpose of his present visit to Hong Kong is to look for a job, which was itself unlawful. Worse still, when he could not find a job, he resorted to burgling premises of decent businessmen of Hong Kong.

For all these reasons and for the reasons pointed out above, the court is of the view that a higher starting point is also warranted for the 2nd accused. Having considered all the circumstances the court also adopts a starting point of 4 years' imprisonment for the 2nd accused.

The court would also like to point out that as far as the present offence is concerned, the two accused are of equal culpability.

Economic reasons are of course not an excuse to commit the present offence. The only mitigation the two accused have is their plea of guilty, for which they should be given credit.

The two accused are therefore each sentenced to 2 years 8 months' imprisonment."

6. Against this background, D1's homemade grounds of appeal firstly make the complaint that his advocate at court spent only 5 minutes with him in advance of the case so that the mitigation was not properly prepared or presented. A glance at the mitigation put before the judge shows that counsel had said all that could properly be said in circumstances where the only real mitigation, as the judge rightly commented in the course of his sentencing remarks, was D1's plea of guilty.

7. His other ground of appeal principally amounted to a complaint that the sentence was too long because the judge had wrongly used the Applicant's lengthy criminal history to increase his sentence.

8. We can consider D1's second ground together with the written arguments advanced by Ms Draycott on D2's behalf. She contended firstly that the judge had placed too much emphasis on the past offences committed by D2, especially when one of those offences related to a burglary eleven years ago and the other was an attempted burglary in 1997. Secondly, she submitted that the fact that D2 was a two-way permit holder from the Mainland was not a relevant consideration for the purposes of sentence or, if it was, that this was a factor which did not warrant such a considerable increase in sentence.

9. It is plain from the sentencing remarks of the judge that he was well aware that in normal circumstances a starting point for a burglary of this kind, which involved non-domestic premises, is two and a half years' imprisonment (see: Attorney General v Lui Kam-chi [1993] 1 HKC 215). Whilst this court has frequently stated that sentencing guidelines should generally be followed in order to ensure that there is consistency in the courts' approach, this does not, of course, mean that where a particular need to pass a deterrent sentence has arisen, a higher sentence than normal should never be imposed.

10. In HKSAR v Chan Pui-chi [1999] 2 HKLRD 830, where the applicant was a drug trafficker, the court observed at 833B:

"The fact that the applicant had a criminal record cannot by itself necessarily increase his sentence, but the plain fact remains that he, like any other defendant with previous convictions, was being sentenced against the background of that record......

Whilst it is always important for the sentencer to bear in mind the general principle that a defendant is being sentenced for the offence which has brought him before the court and not for previous offences for which he has already served the penalty, the constant repetition of this applicant's trafficking in dangerous drugs had itself increased the gravity of these offences, at least so far as sentence is concerned. The sentences he had received in the past had proved to be no deterrent at all, and prevention of further repetition was demonstrably in the public interest.

We should add that there is nothing original about the notion that a defendant, with previous convictions of the same or a similar kind as the offence for which he is due to be sentenced, may receive a longer sentence than a defendant with none. If it were otherwise, the man of good character standing next to the recidivist in the dock on a joint charge, with equal culpability for the crime, would plainly have to be sentenced to the same terms of imprisonment subject probably to a small reduction in the case of the former to take into account his good character."

A little further on, at 833J, the judgment continued:

"There are many examples of this kind to be made, and trafficking in dangerous drugs is certainly no exception, if indeed there are any exceptions, to the general rule that re-offending in the same or a similar way may aggravate the offence, at least so far as sentence is concerned. This will have the result that the starting point which would have been adopted for a man of good character will sometimes need to be increased to take into account the aggravating features of persistence and the failure of previous sentences to deter on the one hand, and the court's duty to protect the public on the other. The court, in other words, is passing a deterrent sentence on the persistent offender, from whom the public needs protection, which is often unnecessary on a first or even sometimes a second-time offender."

11. The past criminal history of D1 reveals eight previous convictions. Most serious amongst his offences were burglaries in 1983 when he was sentenced on one occasion to three years' imprisonment and on another to three years' and nine months. After his release, he received a further sentence of two years for three offences of handling stolen goods before being sentenced on 13 August 1990 to twelve years' imprisonment for the much more serious crimes of conspiracy to rob and possession of arms and ammunition. On being released from that sentence, he was apparently soon before the courts again because, on 2 August 2000, he received a two-year sentence for aggravated burglary. The present offence was therefore the fourth time the Applicant had committed burglary, albeit it is not without importance that the two earliest transgressions of this kind were nineteen years ago.

12. Amongst D2's six previous convictions, acquired as a Mainlander in Hong Kong, for which on every occasion he has been sent to prison, he was sentenced in 1991 for burglary and remaining in Hong Kong without authority to a total of eighteen months' imprisonment which, on the face of it, was remarkably lenient. The other relevant conviction was when he received a thirty-three-month sentence in total in 1997 for attempted burglary and possession of another person's identity card at a time when he was again in Hong Kong without authority.

13. In the light of both Applicants' backgrounds, we consider that the judge was fully entitled to conclude that longer sentences were called for than the usual guideline tariff. As regards D1, he was only recently released from his two-year sentence for aggravated burglary and plainly some enhancement of sentence in the present case was called for on the basis of his persistence in this kind of offence.

14. In respect of D2, whilst his criminal record was much less than D1's, we do not think that the judge was in error when he also placed some weight on D2's status as a two-way permit holder from the Mainland. This was another factor, amongst several, that the judge was entitled to consider. The conclusion that D2 came to Hong Kong to commit crime was almost inescapable. This was, we can emphasise, not a case where D2 had apparently breached any immigration laws which would leave him open to further punishment in respect of his presence in Hong Kong.

15. This was a well-organised burglary which was committed by two men who were accustomed to the courts and to the likely consequences of being found out. However, the enhancement from two and a half years for a burglary in commercial premises to the starting point taken by the judge of four years was, we consider, having regard to the particular facts of this case, manifestly excessive.

16. In our opinion, the proper starting point for D1 was three years and three months and in regard to D2, a starting point of three years. After the normal discount of one third, this would leave D1 with a sentence of two years and two months and D2 with a sentence of two years' imprisonment.

17. Accordingly, we shall grant leave to appeal to both Applicants. Treating the hearing as the appeal, we shall reduce the sentence of D1 from two years and eight months to two years and two months. D2's sentence is reduced to two years' imprisonment.