HKSAR v. WU CHI TAI, KENNIS

CACC256/2010
CACC257/2010
(Heard Together)

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NOS. 256 AND 257 OF 2010

(ON APPEAL FROM DCCC NOS. 1419 OF 2009 AND 100 OF 2010)

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BETWEEN

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REASONS FOR JUDGMENT

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Hon Hartmann JA (giving the judgment of the Court):

Introduction

1.  On 16 July 2010, in the District Court, the applicant was sentenced by Her Honour Judge Toh to a term of five years and four months imprisonment in respect of the following six offences to which the applicant had pleaded guilty: one count of conspiracy to burgle, two counts of attempted burglary, two counts of burglary and one count of taking a conveyance without authority.

2.  The applicant sought leave to appeal sentence on the single basis that, while no complaint was made of the notional starting point in respect of each individual offence, when viewed in totality, the overall sentence was manifestly excessive.

3.  Having heard submissions, we allowed the application for leave to appeal and, treating the application as the appeal itself, reduced the overall sentence from five years and four months imprisonment to four years imprisonment. We said that we would give our reasons later and would, in addition, detail the mechanics by which the sentences were to reflect the reduced term of imprisonment.  We do so now.

Background

4.  For administrative reasons, instead of being consolidated into a single charge sheet, the charges to which the applicant pleaded guilty were contained in three different charge sheets, each under a different case number. While there may have been good reason for this, we pause to observe that it added considerably to the burden imposed on the judge.

5.  The three cases related to a course of conduct by the applicant which extended over a period of some seven weeks.

6.  At the time, the applicant was in his early 30s. He had five previous convictions, only one being similar, that is, a conviction for theft for which he had been fined $3000.

(i)   DCCC1419/2009 (‘1419’)

7.  Under this case heading, the applicant pleaded guilty to three charges, namely, attempted burglary, taking a conveyance without authority and conspiracy to commit burglary.

8.  The facts revealed that on a night in October 2009 the police had seen the applicant and three other men drive to the rear of a restaurant premises. They were wearing gloves and carried a crowbar. As they were attempting to break into the restaurant, they were arrested. This was the basis for the charge of attempted burglary.

9.  In respect of the charge of taking a conveyance without authority, the applicant – a mechanic - admitted that he had used a customer's car, left with him for repair, to drive himself and his three co-accused to the restaurant.

10.  After his arrest, the applicant admitted that at an earlier date he had driven one of his co-accused to shops in the Tuen Mun and Yuen Long areas for the purpose of committing burglary. He made no admission however as to whether any of the burglaries had been successful or whether property had been stolen. This was the basis for the charge of conspiracy to commit burglary.

(ii)  DCCC 100/2010 (‘100’)

11.  Under this case heading, the applicant pleaded guilty to a single charge of attempted burglary.

12.  The facts revealed that, while on police bail for the earlier attempted burglary, the applicant, together with a co-accused, was seen using an iron bar to attempt to break into a restaurant. When disturbed, the two of them walked away from the restaurant. The police were called and the applicant and his co-accused were arrested nearby.

(iii)  DCCC 303 and 587/2010 (‘303’)

13.  Under this case heading, the applicant pleaded guilty to two charges of burglary.

14.  The facts revealed that two restaurant premises were burgled, the applicant's fingerprints being found inside both premises. Property to the value of $28,000 was stolen from the one premises, property to the value of $20,800 was stolen from the other.

The judge’s assessment of sentence

15.  In respect of the four burglary offences, the subject of case numbers 1419 and 303, the judge took, as a starting point in respect of each, a period of 30 months imprisonment, reflecting the plea of guilty by reducing the sentence in each case by one third to 20 months imprisonment.

16.  In respect of the single count of attempted burglary, the subject of case number 100, the judge took an increased starting point of 36 months imprisonment. She did so on the basis that this offence had been committed while the applicant was on police bail. The sentence was reduced by one third to 24 months imprisonment.

17.  In respect of the single charge of taking a conveyance without authority, the subject of case number 1419, the judge took as a starting point a period of 36 months imprisonment, the sentence being reduced by one third to 24 months imprisonment.

18.  Mr. Mughal, who appeared on behalf of the applicant, made no complaint of any of these starting points. As we have said, his complaint was that, even if the sentences imposed in respect of each individual charge were appropriate, the total sentence was nevertheless manifestly excessive.

19.  It is to be emphasised that the judge did not ignore the principle of totality. To the contrary, she took it into account at two stages of her assessment. She did so, first, when looking to the total sentence under each case number and, second, when looking to the final total, that is, the total reached when the sentences imposed under each case heading were themselves added together.

20.  The result, as we have said, was a final sentence of five years and four months imprisonment. It was Mr. Mughal’s complaint that this totality reflected a notional starting point of eight years imprisonment and that, he said, was manifestly excessive.

Discussion

21.  In the course of their submissions, both counsel referred us to a number of cases involving multiple burglaries of non-domestic premises. From them we conclude that, as far as sentence is concerned, much will depend on the aggravating circumstances of each individual case. There is no notional upper limit.

22.  As to what will constitute aggravating features, in HKSAR v Cheng Wai Kai [2008] HKCU 932, Yeung JA said that –

“The starting point can be adjusted upwards if there are aggravating circumstances such as (1) the offence is carefully planned and skilfully executed involving the use of heavy instruments or equipment; (2) the offence is committed by two or more people; (3) the offence targets at substantial premises and involves substantial properties; (4) the offender is a professional burglar and not just an opportunist; (5) the offender has previous convictions, particularly previous convictions of a similar nature, and (6) the offender commits multiple offences”

23.  It is also apparent, as this Court (differently constituted) noted in HKSAR v Fan Kit Hung [2009] 6 HKC 314, that there is an increasing appreciation of the need for deterrent sentences for offenders who are professional or serial burglars.

24.  In the present case, it is undoubted that there were a number of aggravating features. Over the seven weeks when he committed the offences, as Mr. Mughal conceded, the applicant acted as a professional burglar. Nor did he act alone. In the majority of cases he acted with others. The burglaries were not merely opportunistic; on two occasions a crowbar or similar iron bar was employed, this being an indication of a planned enterprise.  The applicant was a man with previous convictions in addition to which one of the offences being the subject of this appeal was committed while the applicant was on police bail.

25.  But that being said, it appears that the targeted premises were not substantial; in the main they were small restaurants. No substantial damage was done to the various premises nor to things found inside them. In addition, as Mr. Mughal emphasised, the value of the property stolen was limited, being less than $50,000, while the number of burglary offences themselves was limited to five.

26.  Taking all the circumstances of the case into account, we were satisfied that the notional starting point of sentence of eight years imprisonment was manifestly excessive. But that being said, weight still had to be given to the aggravating features. In addition, in our view, some element of deterrence should be reflected in sentences imposed on professional burglars who commit multiple burglaries. In our judgment, therefore, a notional starting point of six years imprisonment was more appropriate. That would result in a totality of four years imprisonment.

The mechanics of adjustment

27.  To achieve an overall sentence of four years, we do not consider it necessary to disturb the sentences imposed in respect of each individual offence. As we have indicated, those sentences were appropriate. Nor do we consider it necessary to disturb the orders of the judge in terms of which, under each case heading, certain sentences were to run currently, in part or whole, with other sentences.  On our understanding of the judge’s Reasons For Sentences this resulted in the following overall sentences which we left undisturbed. First, under case number 1419, three years imprisonment; second, under case number 100, two years imprisonment and, third, under case number 303, two years and six months imprisonment.

28.  However, in order to achieve an overall sentence of four years imprisonment, we order as follows, namely, that one year of the sentence of two years imposed under case number 100 together with all of the sentence imposed under case 303 are to be served concurrently with the term of imprisonment of three years imposed under case number 1419.

29.  Accordingly, for the avoidance of ambiguity, the remaining one year of the sentence of two years imposed under case number 100 is to be served consecutively to the term of imprisonment of three years imposed under case number 1419, making for a total of four years imprisonment.