CACC 258/2010

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 258 OF 2010

(ON APPEAL FROM DCCC NO. 585 OF 2010)

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BETWEEN

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REASONS FOR JUDGMENT

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Hon Mackintosh J (giving the judgment of the Court):

1.  The Applicant sought leave to appeal against a sentence of 16 months’ imprisonment for an offence of burglary of domestic premises imposed by HH Judge Anthea Pang in the District Court. The Applicant had pleaded guilty and the sentence was discounted by the conventional one third from two years’ imprisonment to reflect that plea.

2.  On 3 November 2010, we granted leave, treated the hearing of the application as the appeal, allowed the appeal, set aside the sentence and substituted a sentence of 10 months imprisonment. We said we would provide reasons later. This we now do.

3.  The burgled premises consisted of a cubicle in a flat in Un Chau Street in Sham Shui Po which was the home of a man (PW1) who went on holiday to the mainland for a fortnight in April 2010, leaving the cubicle unattended and unlocked: there was no lock. The applicant occupied an adjoining cubicle in the same flat; and whilst PW1 was away, he entered his neighbour’s cubicle, rummaged through his belongings and stole a pack of cigarettes. When PW1 returned from the mainland, he found signs of ransacking in his cubicle and discovered that the cigarettes were missing. He was informed that the Applicant had been seen entering the cubicle and he notified the police. The Applicant was arrested and admitted that he had burgled PW1’s cubicle and stolen the cigarettes, because he knew it was not locked and he knew PW1 was on holiday; he said he had no money to buy cigarettes of his own.

4.  The Applicant, a man of 48, had a limited criminal record which had no impact on sentencing and has none on this application. He has a history of schizophrenia but reports obtained to confirm his fitness to plead contained little of significance so far as sentence was concerned.

5.  The learned judge, correctly in our judgment, distinguished this case from an ordinary domestic burglary for which the well established sentence starts at three years’ imprisonment. She concluded that although this was a burglary of someone’s home, and that there had been some “ransacking”, it was more in the nature of an opportunistic offence rather than a burglary targeting ordinary domestic premises with all the adverse implications for householders which such burglaries can bring. She described the Applicant as a “sneak thief”. Thus she adopted the lower starting point.

6.  The submission made on behalf of the applicant was that although this was an attack on domestic premises, it was “merely a technical commission of the offence of burglary”, in which no damage was done and low value property was stolen; and that the starting point of 24 months’ imprisonment was disproportionately high.

7.  We disagree. There is no reason in principle why peoples’ homes at the less affluent end of the spectrum should be treated any differently simply because their occupants do not seem to be well off. All householders, rich or poor, are entitled to equal protection. This was not a mere technical burglary: it comprised the invasion of private domestic premises in which the property of the occupant was disturbed to some degree. It was opportunistic only in the sense that the applicant knew that PW1 was away on holiday; and there was no damage caused because there was no lock.

8.  Despite the learned judge’s description of the applicant as a “sneak thief”, she nevertheless recognised that the offence included the invasion of private property and a search through and disturbance of PW1’s property.  However, we do not think that this case falls into the same category of burglary as exemplified in one of the cases cited to us, HKSAR v Cheung To Ming [2006]HKLRD 259.

9.  That said, we note that in sentencing the judge said this:

“The defendant clearly entered PW1’s cubicle to steal, not just for the sake of satisfying his smoking habit, and that explains the signs of ransacking although what the defendant eventually got was just a pack of cigarettes.”

10.  We think that that approach may, in the event, have effected an unfairness. In his cautioned interview, reflected in the summary of facts which were agreed, it was the applicant’s case that he had stolen a pack of cigarettes as he knew the occupier of the cubicle was on holiday and he had no money to buy cigarettes. The clear implication of this was that the applicant, who at the material time was living on social security, went into the premises in order to find cigarettes. The phrase “there were signs of ransacking” did indeed find its way into the summary of facts but there was no evidence of the extent of it since no photographs were put before the court below. The nature of the phrase used and the fact that no photographs were taken rather suggest that the ransacking was minimal, more in the nature of a rummaging; or that in any event that is the assumption that should be made in the applicant’s favour. Furthermore one may safely assume that within the cubicle into which the applicant intruded, there was other property, possibly property of greater value than that of one packet of cigarettes.

11.  So what this amounted to was an invasion of a home, albeit a cubicle, with a view to theft, which is of course sternly to be discouraged, which is why a term of imprisonment inevitably follows; but on the other hand this was a casual entry into a neighbour’s cubicle when other people were about and the theft of but one packet of cigarettes by a defendant in his mid-40s on social security. Sentencing guidelines must never obscure the individual facts and justice of a case and in this particular instance we were of the view that an appropriate starting point was manifestly high.

12.  In our judgment an appropriate starting point in this case was one of 15 months’ imprisonment and giving the appropriate discount for the applicant’s plea of guilty, we were of the view that the resulting sentence should be one of 10 months’ imprisonment.