HKSAR v. WATHTHA WADUGE SAMANTHA RANASIRI

CACC 214/2023, [2024] HKCA 472

On appeal from [2023] HKDC 1589

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 214 OF 2023

(ON APPEAL FROM DCCC NO 99 OF 2023)

________________________

________________________

________________________

J U D G M E N T

________________________

1.  The applicant pleaded guilty to 2 charges of burglary (Charge 1 and Charge 2 respectively), contrary to section 11(1)(b)  and (4)  of the Theft Ordinance, Cap 210. He was sentenced to a total of 32 months of imprisonment by HH Judge Clement Lee (the “Judge”).[1]

2.  The applicant acts in person and now applies for leave to appeal against the sentence.

Summary of Facts

3.  The two offences took place in a construction site of “LYOS”, located at No. 2 Hung Yuen Road, Tin Shui Wai, New Territories (“the Site”), which measured 110,000 square feet for private housing estate and was still under construction at the material time.

4.  In the early hours of 11 August 2022, the applicant damaged the password lock of the telephone room, entered the  telephone room and switch room of the Site and stole a total of 21 rolls of electric wires (valued at HK$43,050 in total)  (Charge 1).

5.  In the early hours of 29 August 2022, the applicant and another person entered the power room of the Site and stole 3 rolls of copper wires (valued at HK$15,000 in total)  (Charge 2).

6.  The applicant was arrested on 31 August 2022.  He was a Form 8 recognizance holder.

Grounds of appeal

7.  In his homemade grounds, the applicant complained that his sentence was excessive.  It was submitted that the Judge erred in enhancing the sentence due to his previous similar convictions.  He also argued that the judge should have ordered the sentences in respect of both charges to run concurrently.

Respondent’s submission

8.  The respondent submits that the starting point of 2½ years’ imprisonment for each charge as adopted by the Judge was in line with the tariffs for non-domestic burglaries[2] and he had rightly taken into account various aggravating factors and the enhancement was justified.[3]  As the two charges were committed on different dates, the Judge had already taken into account the totality principle when he ordered partially consecutive sentences.

Discussion

9.  The present case involves 2 charges of non-domestic burglary.  A starting point of 2½ years’ imprisonment laid down in the authorities applies to a first offender of full age in the absence of aggravating factors.[4]

10.  The Judge rightly identified the followings as aggravating features:

(1)  The applicant is a repeated offender of offences relating to dishonestly: he has 5 previous convictions, of which 4 are dishonest related offences (which were recorded in 2012, 2022 and 2023), including offences of theft and going equipped for stealing,[5] and the present offences were committed shortly after his release from prison of a two months’ imprisonment which he received on 15 June 2022;

(2)  the value of the stolen properties was not insubstantial  ($58,050)  and most, if not all of the items were not recovered;

(3)  The applicant was a “Form 8 recognizance holder”.

11.  The Judge was correct in making the 6 months’ enhancement as he did and then give the one-third discount for his guilty plea.  I clarified at the hearing that the offences in respect of his last sentence (sentenced on 18 May 2023)  was committed in December 2021.  He was granted bail but was temporarily released in July 2022.  So the present offences, whilst strictly speaking, were not committed when he was on bail for the 2021 offences, were committed shortly after his temporary release. 

12.  The two offences in the present case were distant in time and could not be regarded as part and parcel of a single transaction, and therefore warrants consecutive instead of concurrent sentences.  The judge already took into account totality to order 8 months out of the 2 years’ sentence in respect of Charge 1 be made consecutive to Charge 2, making a total of 32 months’ imprisonment, instead of what the applicant thought was a total of 48 months.

13.  The grounds advanced are not reasonably arguable and I refuse to grant leave to appeal his sentence.  I remind the applicant of his right to renew his application for leave to the Court of Appeal and that may attract a consequence of an order of loss of time spent in custody appeal his appeal, should the court come to the view that there is no justification for the renewal of his application.