HKSAR v. LI KIN KEUNG

CACC 7/2012

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 7 OF 2012

(ON APPEAL FROM DCCC NO. 1151 OF 2011)

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REASONS FOR JUDGMENT

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Hon McWalters J (giving the judgment of the court):

Introduction

1. On 16 December 2011, the applicant pleaded guilty before Judge Remedios to 13 charges of theft, contrary to section 9 of the Theft Ordinance, Cap 210. All of the charges involve the stealing of earth electric wires from 13 floors of twopublic housing estate buildings on two separate days.

2. The applicant was sentenced by the judge to a total of 25 months imprisonment made up of sentences of 10 months imprisonment on each charge with 10 months of Charge 9 and 5 months of Charge 13 to run consecutively to the other charges.  The sentence of 25 months imprisonment was arrived at by the judge firstly determining that a total of 21 months imprisonment was appropriate to reflect the fact that there were 13 charges and secondly by the judge exercising the power contained in section 27(11) of the Organized and Serious Crimes Ordinance, Cap 455 to enhance this figure by 20% in response to information furnished by the prosecution under section 27(2)(a) and (c) of that ordinance.  The applicant sought leave to appeal this sentence.

3. On 12 June 2012, after hearing the submissions of both the prosecuting counsel and the counsel for the applicant, we allowed the application for leave to appeal against sentence, treated the hearing as the hearing of the appeal and allowed the appeal.  We quashed the judge's orders as to which sentences were to be served consecutively with other sentences and ordered the sentences of 10 months imprisonment imposed on each charge to be served concurrently with one another, save that 3 months of the sentence imposed on Charge 10 is to be served consecutively to the sentences imposed in respect of Charges 1 ‑ 9 inclusive.  Accordingly, the total sentence imposed on the applicant is 13 months imprisonment.  We said we would later give our reasons for the orders we made and this we now do.

The Background Facts

4. At 2030 hours on 7 August 2011, a security guard patrolled at Hing Shing House, Tai Hing Estate, Tuen Mun and discovered that earth electric wires mounted on the walls of staircase No. 3 on the 2^nd to 5^th and 7^th and 9^th to 12^th floors were missing.  The theft of these wires are the subject of Charges 1 – 9 on the Charge Sheet.  The wire that was stolen from each floor is the subject of a separate charge.

5. At 0745 hours on 22 August 2011, another security guard patrolled at Hing Ping House of the same housing estate and discovered that the earth electric wires mounted on the wall of the staircase No. 1 on the 21^st 19^th and 17^th floors were also missing.  As he walked down the stairs to the 17^th floor, the security guard heard something dropping onto the floor.  He subsequently found on the 17^th floor a piece of electric wire and a yellow recycle bag containing three pieces of electrical wire and on the staircase landing between 17^th and 16^th floor a pair of scissors.  Later, he also found that the earth electric wire on the 22^nd floor of No. 3 staircase was missing.  The theft of these wires are the subject of Charges 10 – 13 on the Charge Sheet.  Again the wire that was stolen from each floor is the subject of a separate charge.

6. Police were called and the CCTV of the building captured the image of the applicant rushing down the staircase.  The applicant was arrested at about 1051 hours on the same day.

7. At a video recorded interview conducted with the police at about 1730 hours on 22 August 2011, the applicant admitted that he cut the earth electric wires with a pair of scissors on the floors between the 17^th and 22^nd floors of Hing Ping House and discarded the scissors and the wires on the staircase between the 16^th and 17^th floors of the same building for fear that he would be caught by the security guard patrolling down the stairs.  He also admitted that he had brought with him a recycle bag, a plastic bag, a pair of scissors and a pair of gloves to commit the offences and that those items seized at the scene all belonged to him.  He further admitted that he was responsible for the theft of the wires from Hing Shing House on 7 August.

8. The total replacement and repair cost for the stolen wires was assessed at $2,200.

The Judge's Reasons for Sentence

9. The applicant presented to the trial judge as a 34-year-old man, divorced with a 3‑year‑old daughter.  Prior to the commission of the present offences, he had previously worked at a food stall earning $6,500 a month. After he became unemployed in June 2011, he turned to earning money by stealing electric wires and selling them.  He had four previous convictions, one relating to theft committed in 2000 and the others relating to drugs.  He had never been sentenced to a term of imprisonment before.  He expressed remorse for committing the present offences.

10. The judge adopted a starting point of 15 months for each charge which she then discounted by one third to 10 months to allow for the plea of guilty. She determined upon the starting point by taking into account the mitigation advanced by the applicant's counsel and by reference to HKSAR v Wong Sai Cheung HCMA 768/2007 which was also a case of theft of earth wire.

11. In Wong Sai Cheung, the magistrate said that stealing earth wire is very serious because these wires perform a life-saving role in that they prevent persons from being electrocuted when there is an electricity leakage.  The magistrate's starting point of 15 months imprisonment was chosen to reflect the gravity of the defendant's conduct and his approach to sentence was held on appeal to be correct and his final sentence to be appropriate.

12. After determining the starting point, the judge then went on to consider totality and decided that in order to reflect the applicant's overall culpability as revealed by the 13 charges a total sentence of 21 months, before enhancement, was appropriate.

13. The judge then considered, and acceded to, an application by the prosecution for an enhancement of the sentence under section 27(11) of the Organized and Serious Crimes Ordinance, Cap 455.  The basis for the enhancement was the nature and extent of any harm caused, directly or indirectly, to any person by the act of the convicted person (section 27(2)(a)), and the prevalence of the offence (section 27(2)(c)).

14. The judge accepted that from the information provided to her the harm that flowed from the applicant's conduct was the placing of human lives in danger from the risk of electrocution.  She then went on to a detailed discussion of the Wong Sai Cheung case, saying that she was guided by that case as to the appropriate sentences and that she agreed with the observations made in it.

15. As to the prevalence of the offence, the judge accepted that on the statistical evidence presented to her the offence committed by the applicant did not seem to be increasingly rapidly.  However she found the offence was progressively prevalent.  The judge was aware of the guidance given by this court in HKSAR v Cheung King Lung CACC 67/2002 where Stock JA said that progressive prevalence only, as opposed to a rapidly increasing trend, could not justify a 50% enhancement without some forewarning by the court.  She then settled upon an enhancement of 20%.

16. It is clear from the judge's comments that she felt that enhancement could be justified on the section 27(2)(c) limb of prevalence.  It is also clear from the judge's comments that she regarded the applicant's conduct as serious. But because the judge's comments on harm caused by the offence coincide with her discussion of the appropriate starting point, it is not clear to what extent, if at all, she relied on the information furnished to her under section 27(2)(a) when determining that enhancement was appropriate and the percentage by which the sentence should be enhanced.

The Grounds of Appeal

17. The applicant's grounds of appeal relate to the starting point, the totality and the enhancement.

18. On starting point, counsel for the applicant, Mr Lo, submitted that the 15 months starting point adopted by the judge for each charge was manifestly excessive.  He relied on two cases in his written submission to support this ground of appeal, namely HKSAR v Law Kwan Ying & Lee Sun Yau HCMA 513/2008, HKSAR v Chang Shu Shang HCMA 579/2011.

19. On the issue of totality complaint is firstly made of a comment by the trial judge which it is said evidences a miscalculation by her in arriving at her total sentence.  Mr Lo submitted that the judge wrongly computed the total sentence when she said in paragraph 63 of the Reasons for Sentence:

“As there are 13 charges, as I mentioned, I take into account the principle of totality and I consider that a 21-month sentence after trial would be appropriate for these 13 offences. In applying a 20 per cent enhancement on that, that would be about 4 months, so the total term of imprisonment would be 25.” (Emphasis added)

20. Mr Lo argues that the italicized words “after trial” should mean that the judge should have imposed a total sentence, after allowing for the discount for the plea of guilty, of 14 months imprisonment.

21. Mr Lo also submitted that by adding a further 11 months to the initial sentence to reflect the additional culpability of the applicant as revealed by the other 12 charges, the sentence has become manifestly excessive.

22. In respect of enhancement Mr Lo submitted that the 20% enhancement imposed by the judge on the basis of the prevalence of the offence and the harm caused by it was not justified.  On the issue of prevalence, he submitted that 'prevalence of the offence' must refer to a specific offence which, in the present case, is theft of electric wires and that the judge was wrong in concluding in paragraph 59 that 'the offence is progressively prevalent', having regard to the statistics compiled by the police and included in the re-amended summary of facts.  He also submitted that on the interpretation of the statistics, the offence of stealing electric wires was not prevalent in the sense of 'widespread' or 'substantial'. On the issue of seriousness of the offence, Mr Lo submitted that the offence committed by the applicant in the circumstances of the present case is not serious enough to justify an enhancement of sentence.

Discussion

Starting point

23. In relation to starting point, neither of the two cases on which Mr Lo relied concerned earth electric wire being the subject matter of theft.  In Law Kwan Ying & Lee Sun Yau, the defendants stole a roll of unused wire from his employer's construction site.  In Chan Shu Shang, a road sign was stolen.  Therefore, they have no direct relevance to the facts before us.  On the other hand, the Wong Sai Cheung case, which was primarily relied on by the judge, has very similar facts to the present case. They both involved intrusion into private residential tower blocks and the theft of earth electric wire mounted on the walls.  In our opinion, having regarded to Wong Sai Cheung and all the circumstances of the present case, a starting point of 15 months for each charge is not manifestly excessive.  This ground, therefore, fails.

Totality

24. It is clear that the italicized words are simply a mistake by the judge. Taking into account the context of the judge's Reasons for Sentence, the phrase 'after trial' in this paragraph must mean 'after plea'.  Had the judge meant 'after trial', she could not have arrived at the figure of 21 months after adding the consecutive 10 months of charge 10 and 5 months of charge 13 to the 15 months as starting point on each charge, as she stated in paragraph 64.

25. It is not clear how the judge determined upon an additional 11 months but her reference to the 13 charges suggests that she may have been unduly influenced by the sheer number of charges.  However the reality is that this is not 13 separate thefts but merely two episodes of stealing.  In each episode the applicant simply went from floor to floor of each building that he was in using a pair of scissors to cut away lengths of earth wire.  In the circumstances of this case we cannot see why one charge of theft was not laid in respect of each stealing episode.

26. Looking at the applicant's overall culpability for these two episodes we are of the view that a further three months is sufficient additional punishment.  The total sentence, before enhancement, should therefore be 13 months imprisonment.

Enhancement

27. Enhancement of sentence is a power that is exercised by a court in response to information furnished to it under section 27(2)(a) – (e). The purpose of the enhancement power, in terms of sentencing principle, is to deter.  Use of the enhancement power can only be justified where the information furnished to the court establishes a need for a sentence containing a greater level of general deterrence.  It is an exceptional power provided to the courts to be used sparingly and only when a court encounters exceptional circumstances that warrant its deployment.

28. Although the information that is furnished may be any of the different types of information set out in section 27(2)(a) – (c), the information usually furnished to a court for enhancement of sentence is in relation to the prevalence of the offence, ie under section 27(2)(c), and it is with respect to this limb that most appellate authority is concerned. There seem to be no judgments on the section 27(2)(a) limb of harm caused by the offence.

29. The matters on which information may be furnished under section 27(2)(a) – (e) are all matters which a sentencing judge would be entitled to take into account when determining his starting point.  In deciding upon the appropriate starting point the judge will have had regard to the sentencing principles of deterrence, both personal and general, retribution and rehabilitation.  Before acceding to an application for enhancement he must be satisfied that the need for the sentence to contain a strong element of general deterrence cannot be accommodated by a sentence within the normal range of sentences for the conduct committed by the defendant.

30. In dealing with the section 27(2)(c) limb of prevalence it is first necessary to identify what it is that is said to be prevalent.  As a matter of statutory construction, 'prevalence' must refer not to an offence in its generic form such as “theft” but to the specific form of theft, which is said to be prevalent.  Here that form is not theft of road signs, manhole covers or other forms of metal but theft of earth electric wires from buildings.  The data regarding theft of all kinds of metals is simply irrelevant to the decision the judge had to make in this case.

31. What then was the effect of the information furnished by the prosecution under section 27(2)(c).  Mr Lee, counsel for the respondent, was forced to concede that the statistics regarding theft of electric wires did not show a clear trend of progressive prevalence or widespread prevalence.

32. We agree.  The data regarding the theft of electric wires does not in fact show an increasing trend and does not substantiate the judge's finding of progressive prevalence.  What the figures do show is an increase from 2009 to 2010 which then plateaus in 2011.  But this is only for New Territories North.  For the New Territories as a whole the figures suggest a slight decrease and for Hong Kong as a whole a more marked decrease. Consequently it cannot be said that the offence is prevalent in the sense of being widespread.  It follows, therefore, that an enhancement on the basis of prevalence of the offence cannot be justified.

33. We also are of the view that the information furnished under s 29(2)(a) cannot justify an enhancement of the 15 months starting point.  The information furnished under section 29(2)(a) all went to potential harm, not actual harm.  The harm actually caused to a person in the present case is exposure to a greater risk of electrocution.  There was not an immediate public safety crisis created by the applicant's conduct which required the extraordinary response of enhancement. 

34. However in so saying we do not wish to be taken as in any way diluting the seriousness of the applicant's conduct.  But we are of the view that that seriousness is adequately reflected in the high starting point that was properly adopted for the theft of property – property whose quite trivial value would otherwise have attracted a much lower sentence.  The public danger flowing from the removal of the earth electric wires was a key factor which determined the judge's adoption of this high starting point of 15 months imprisonment. That high starting point already contains within it a substantial element of general deterrence.  The need for further deterrence has not been demonstrated by the evidence furnished to the court under section 27(2)(a).

35. For these reasons, we cannot see how the information furnished under section 27(2) can justify an enhancement of sentence in respect of the conduct committed by this applicant.  We therefore quash the 20% enhancement imposed by the judge.

Conclusion

36. We uphold the judge's decision in adopting 15 months as the starting point for each charge.  Allowing for the guilty plea, this is reduced to 10 months for each charge.  We increase this by a further 3 months to reflect the additional culpability as revealed by the second episode of theft.  We quash the 20% enhancement imposed by the judge for the prevalence and seriousness grounds do not support the enhancement.  In order to achieve a total sentence of 13 months imprisonment we order that 3 months of the sentence imposed on Charge 10 is to run consecutively to the sentence imposed in respect of Charges 1 – 9 inclusive.