HKSAR v. CHEONG MAN KIT

CACC 394/2017

[2018] HKCA 434

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 394 OF 2017

(ON APPEAL FROM DCCC NO 677 OF 2017)

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REASONS  FOR  JUDGMENT

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1.  Following his plea of guilty before HH Judge Yau (“the judge”) on 30 November 2017, the applicant was convicted of one charge of theft, contrary to section 9 of the Theft Ordinance, Cap 210 (Charge 1); and one charge of burglary, contrary to section 11(1)(b) and (4) of the same Ordinance (Charge 2). On the same day, the applicant was sentenced to an overall sentence of 26 months’ imprisonment on both charges, with 3 months of the sentence being ordered to run consecutively to an existing sentence, which had been imposed on 14 July 2017 in respect of 7 different offences of dishonesty[1]; and which was being served by the applicant at the material time, with some 6 months of that sentence left to run.

2.  The applicant sought leave by counsel to appeal against his sentence.  On 19 July 2018, I refused the applicant leave to appeal and said I would hand down my reasons shortly.  These are my reasons.

Facts

3.  The applicant had, since 27 February 2017, become acquainted with a Mr Lee (PW1), who resided with his family at certain residential premises in Villa by the Park, No 139 Castle Peak Road, Yuen Long in the New Territories.  They had become good friends and PW1 had invited the applicant to his premises for dinner on four or five occasions.

4.  At about 9 am on 10 March 2017, PW1 left home and went to pick up the applicant at Hung Shui Kiu, New Territories since they had arranged to do some work together later that day.  The two then had lunch together with PW1’s wife before going to do their work.  During lunch, the applicant stole the key to PW1’s home from the latter’s shoulder bag.  These facts formed the subject matter of the theft charge (Charge 1).

5.  Whilst PW1 and the applicant were working, and at about 1:30 pm, the applicant borrowed PW1’s car, claiming that he had to return home to get changed before accompanying PW1’s wife to the Mainland that afternoon.  PW1 agreed.  At about 2:40 pm, the applicant returned the car to PW1 and thereafter went to Lok Ma Chau with PW1’s wife. 

6.  On arriving home by himself, PW1 discovered that the key to his home was missing; accordingly, he waited until about 6 pm for his wife to return from the Mainland.  When she returned, she informed PW1 that the applicant did not accompany her to the Mainland because he said he had forgotten to bring his Home Return Permit with him.

7.  PW1 and his wife subsequently discovered that RMB8,000 and HKD$9,000 in cash was missing from a drawer in their bedroom; and two Rolex watches had disappeared from a box in the living room.  However, they did not see any signs of ransacking or prizing of the door.  PW1 thus reported the matter to the police.  He also tried to contact the applicant, but in vain.  These facts formed the subject matter of the burglary charge (Charge 2).

8.  Having viewed the CCTV footage of the vicinity of the building where PW1 and his wife lived, police officers discovered that the applicant had entered the building at about 1:39 pm on 10 March 2017, and left at about 2:04 pm.  Police also inspected CCTV footage of the applicant’s home premises in Hung Shui Kiu and found that he had returned home at about 2:20 pm before leaving four minutes later.  Further investigation revealed that the applicant had pawned one of the two stolen Rolex watches on 11 March 2017 for HKD$30,000; and that he had pawned the other Rolex watch on 16 March 2017 for HKD$50,000.

9.  The applicant was eventually intercepted and arrested at Hong Kong International Airport on 28 May 2017 on his return to Hong Kong.  In a subsequent video recorded interview, the applicant admitted, inter alia, that:

(a) On 10 March 2017, whilst PW1 was not paying attention to his shoulder bag, he stole the key to PW1’s home;

(b) He had agreed to accompany PW1’s wife to the Mainland, but said he wanted to go home to change.  Instead, he went directly to PW1’s home, where he stole the two Rolex watches and the cash;

(c) He returned home before re‑joining PW1 and his wife.  He then took a bus with PW1’s wife to the border control point, where he told her that he had forgotten to bring his identity document and could not therefore accompany her to the Mainland;

(d) On 11 March and 16 March 2017, he pawned the two Rolex watches for HKD$30,000 and HKD$50,000 respectively; and

(e) He took a vessel from Cheung Chau and left Hong Kong without going through any border control point on 17 March 2017.  While he was at sea, he threw PW1’s key away.

10.  Movement records confirmed that there was no record of the applicant departing Hong Kong after the incident, although there was an arrival entry record at Hong Kong International Airport for the day of his arrest.

Mitigation

11.  The applicant was 26 years old at the time of sentence.  He had 11 previous court appearances involving 23 offences, which included one fraud offence, one taking of a conveyance without authority, seventeen theft offences and three deception offences.  He was at the time of sentencing, serving 16 months’ imprisonment for a set of seven offences involving theft, fraud and obtaining property by deception, which offences were committed by the applicant between September and November 2016.

12.  In the course of mitigation, the judge specifically asked the applicant’s solicitor whether the offences before him were committed whilst on bail for the earlier seven offences.  The solicitor confirmed that they were. 

13.  The applicant, who was educated up to Form 5 level, had worked prior to his arrest as a driver and a housekeeper at a guesthouse in Thailand, earning an average of about HKD$25,000 per month. 

14.  It was put on the applicant’s behalf in mitigation that the applicant’s offending was not motivated by the need of money.  The applicant had developed a habit of stealing since childhood and had received counselling sessions through the Social Welfare Department.  He was said to have committed the offences “for psychological reason(s) as he could not resist such temptation”[2]. The judge accordingly ordered the preparation of a psychological report.

15.  There was some suggestion that the applicant’s father‑in‑law had agreed to lend HKD$100,000 to the applicant for the purposes of making compensation.  However, the court was informed that no money from the father‑in‑law would be forthcoming until the applicant’s release.  Accordingly, no money had been repaid by the time of sentence.  As I understand it, that remains the position today.

Reasons for sentence

16.  The judge considered that the crime had been planned and executed with a degree of planning and sophistication. Furthermore, the property involved could not be said to be a small amount, the value being within the expected range of a domestic household burglary.

17.  The psychological report described the applicant as an “egocentric and impulsive person with Antisocial Personality Disorder”; having “a very low frustration tolerance”; and wanting to “maximiz(e) his gains and pleasure with the least amount of effort”.  The psychologist formed the view that the applicant’s “long history of stealing and deceptive behaviour are strongly related to his impulsive and anti-social personality”.  His behaviour had persisted over the years “probably because he is often able to get away from detection and sanctions (at least for a short period) and because he does not perceive the consequences to be very serious”.

18.  Having considered the psychological report, the judge was of the view that there was nothing to suggest that the applicant committed the offences out of any psychological disorder that compelled him to steal, or that the applicant was not in control of himself when he decided to steal.  

19.  The judge adopted a starting point of 3 months’ imprisonment in respect of Charge 1, and 3 years’ imprisonment in respect of Charge 2.  However, having noted that all but one of the applicant’s previous convictions related to dishonesty, and that the applicant had committed the present offences whilst he was on bail for the earlier tranche of seven offences, the judge enhanced the starting point for these two aggravating features by 1 month on Charge 1 and by 3 months on Charge 2, taking the notional sentences after trial to 4 months’ imprisonment for Charge 1, and 3 years and 3 months’ imprisonment for Charge 2.

20.  No discount was granted for the mere promise of restitution.  Since the only real mitigating factor was the applicant’s timely plea of guilty, the sentence was reduced to 2.7 months’ imprisonment on Charge 1, and 26 months’ imprisonment on Charge 2.  The judge regarded the two offences as linked and ordered the sentences to be served concurrently.

21.  The judge bore in mind the question of totality, given that the applicant had 6 months left of an existing sentence to run, and ordered 3 months of the 26 months’ imprisonment he was imposing to run concurrently with his existing sentence; the remainder to run consecutively.

Grounds of appeal against sentence

22.  In his Perfected Grounds of Appeal, Mr HY Wong, counsel for the applicant, has put forward two grounds of appeal, namely:

(a) The judge was misinformed by the applicant’s solicitor that the applicant had committed the present offences whilst on bail for the earlier seven offences.  In fact, the applicant was not on bail for those offences at the time he committed these; he had not been arrested for the seven offences until 28 May 2017, the day of his arrest in the present case; and

(b) In the circumstances, the 1 month and 3 months’ enhancement in respect of Charges 1 and 2 respectively were made on an erroneous basis, and were therefore wrong in principle.

Respondent’s submissions

23.  Mr Ned Lai, on behalf of the respondent, has confirmed that the judge was supplied with technically incorrect information and the applicant was not on court or police bail for the seven offences at the time of the commission of these offences. 

24.  However, Mr Lai has pointed out that, according to the applicant’s criminal records, the applicant had previously jumped police bail in a theft case (TMCC 1357/2017[3]). The applicant had been arrested in respect of that theft case on 1 December 2015 and would therefore have committed the seven offences whilst absconding from police bail for that theft case, which was at the time still outstanding.  Accordingly, while the applicant had not breached any bail conditions imposed in respect of the seven offences, he had committed the offences when there was an outstanding warrant for an earlier breach of bail.

25.  Mr Lai has referred me to three authorities.  In HKSAR v Lau Hiu‑man[4], the appellant pleaded guilty to two charges of burglary and one charge of assault occasioning actual bodily harm.  He had 24 previous convictions for burglary and had committed the offences whilst on bail for possession of dangerous drugs.  On the basis of three aggravating factors, namely, the occupancy of the premises by the victim(s), the commission of offences whilst on bail, and the fact that the appellant was a persistent offender, the Court held that a 25% enhancement (9 months’ imprisonment) for such a domestic burglary was justified.

26.  In HKSAR v Leung Ting-fung[5], the two applicants pleaded guilty to various charges of burglary and attempted burglary.  They had committed the offences whilst on bail for another burglary case.  The Court held that the commission of an offence whilst on bail was “a seriously aggravating factor”, which entitled the judge to enhance his sentencing starting point.  The applicants were sentenced afresh by the Court and the starting points each enhanced by 6 months’ imprisonment, representing a 20% enhancement for the non‑domestic burglary and a 16.66% enhancement for the domestic burglary.

27.  In HKSAR v Chen Ting-fang[6], the applicant was convicted after trial of a single charge of burglary of domestic premises and was sentenced to 3 years and 3 months’ imprisonment.  It was found that the applicant had made use of a key to enter premises as a trespasser.  The judge in sentencing the applicant for burglary of domestic premises noted that there was a breach of trust and enhanced the starting point by 3 months’ imprisonment.  The Court of Appeal was of the view that the relationship of trust with the victim gave the applicant the opportunity to obtain or duplicate the keys.  The Court of Appeal endorsed the judge’s decision to enhance the starting point so to reflect the aggravating factor of a breach of trust.

28.  In light of these authorities, the respondent submitted that there were three aggravating factors capable of justifying enhancement of the starting points in the present case:

(a) The applicant was a persistent offender in respect of offences involving or related to dishonesty;

(b) The applicant committed the offences in the present case whilst on bail in connection with an earlier theft case (TMCC 1357/2017); and

(c) The commission of the offences was aggravated by the relationship of trust with PW1, which gave rise to the opportunity for the applicant to know where PW1 lived, where his valuables were placed, to steal his house keys, and to enter his home with the knowledge that PW1 and his wife would not be home.

29.  If the Court of Appeal were to sentence afresh, with these three aggravating features in mind, Mr Lai argued that it would have no difficulty in justifying a significant enhancement in respect of Charge 2. Indeed, it was submitted that the circumstances of the present case would amply justify an enhancement of the starting point of between 6 and 9 months’ imprisonment.  Accordingly, the sentence passed on Charge 2 was very lenient.

30.  For these reasons, Mr Lai invited this Court to refuse leave to appeal.  Such mistake as was made by defence counsel at the trial was more than made up for by the aggravating features, some of which were not considered by the judge.

Consideration

31.  It is right that the judge was misled into thinking that the present case was committed whilst the applicant was on bail for the earlier seven offences.  However, as Mr Wong recognises, this ground is somewhat undermined by the fact that, unknown to the judge, the offences were in fact committed whilst on bail in respect of TM 1357/17, from which the applicant had earlier absconded.  The point, such as it is, loses much of its lustre.

32.  I am bound to wonder, with respect, how both legal representatives could have allowed the judge to believe that the present offences were committed whilst on bail for the seven earlier offences, when that was clearly not the case.  In particular, prosecuting counsel on fiat ought to have known the true position or, if he did not, he should have caused enquiries to be made of those instructing him, knowing that the judge was asking for the information.  He certainly had ample time to take instructions over a 10-day adjournment for reports.  Yet, he would appear to have done nothing and allowed the applicant’s solicitor unwittingly to mislead the judge.

33.  The applicant had a shocking criminal record for someone who was only 26 years of age at the time of sentence, and the judge was right to regard his persistent commission of offences of dishonesty as an aggravating factor.  However, the judge said nothing about the applicant’s breach of trust in burgling the house of his friend and the person with whom he was working, using an elaborate charade to deceive both PW1 and his wife. Whilst it might not be a “breach of trust” in the classic sense of that term, it was an egregious betrayal of trust of someone who had befriended the applicant, worked with him and allowed him into his home on social occasions.

34.  A Court of Appeal, when faced with an applicant with his criminal record, who had betrayed the trust of PW1 by committing a serious offence whilst on bail for an earlier offence from which he had absconded, could well conclude that the overall starting point should have been at least 3 years and 6 months’ imprisonment, if not 3 years and 9 months’ imprisonment.

35.  For these reasons, I refused leave to appeal and warned the applicant that, whilst he had the right to renew his application for leave to appeal to the Court of Appeal, he should also be clear that the Court has the power to order “loss of time”, if it were to come to the conclusion that the applicant should not have renewed his application; whether legally represented or not.