HKSAR v. CHAN HON KIT

CACC 284/2017

[2018] HKCA 289

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 284 OF 2017

(ON APPEAL FROM DCCC NO 440 OF 2017)

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J U D G M E N T

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1.  The applicant seeks leave to appeal against the sentence of 2 years and 4 months’ imprisonment imposed on him by HH Judge Dufton (“the judge”) in the District Court on 4 September 2017, following his plea of guilty to one charge of burglary, contrary to section 11(1)(b) and (4) of the Theft Ordinance, Cap 210.

The Facts

2.  At about 9 pm on 29 December 2016, the applicant, a former employee of a dried seafood shop in Des Voeux Road West, Sai Ying Pun, Hong Kong burgled his former premises and stole 2.7 kg of cordyceps valued at about HK$605,000.

3.  At 8 pm on the same day, the shop owner (PW1) had left the premises, having locked and secured his shop for the night.  His son (PW3) discovered the burglary shortly before 7:30 am the next morning when he returned to the shop.  The incident had been captured on CCTV, resulting in the applicant being identified and subsequently placed on the “Wanted List”.

4.  The facts giving rise to the burglary were as follows.  The applicant had previously worked in PW1’s shop from July 2016 until 14 December 2016.  He gained entry to the shop on 29 December 2016 by obtaining the services of a locksmith (PW2), who was told by the applicant that he was the owner of the shop and had left his keys inside the premises.  The applicant asked PW2 to cut open the padlock securing the gate, which PW2 did.

5.  CCTV footage showed the applicant leading PW2 to the shop through a side entrance of the building at about 9 pm that night.  The shop in question was located on the ground and mezzanine floors of the building. After cutting open the padlock, PW2 left the scene.  The applicant then put on a mask, entered the shop, went up to the mezzanine floor and covered the CCTV camera installed there with a sieve.  10 minutes later when he left the shop holding a shopping bag, he removed the sieve.

6.  The applicant was intercepted by police on 20 March 2017.  In a video-recorded interview, the applicant admitted burgling the shop in revenge for PW1 and PW3 dismissing him.  He had hired PW2 to cut open the padlock securing the premises, having previously duplicated the key to the side entrance.  When he left the shop with the cordyceps, he claimed he saw a police vehicle patrolling in the vicinity.  Consequently, he discarded the cordyceps along with the mask and gloves used in the burglary in a rubbish bin in Des Voeux Road West.  When he returned two hours later, he was not able to find the cordyceps.

7.  The applicant was identified by PW2 at an identification parade conducted on 21 March 2017.

Mitigation

8.  The applicant was 51 years of age at the time of the offence.  He had arrived in Hong Kong from the mainland in 1983.  He had been married but his wife had left him some 10 years before.  The main factor in mitigation was the applicant’s plea of guilty.

Reasons for sentence

9.  The judge adopted an initial starting point of 2½ years’ imprisonment for what was a single non‑domestic burglary.  However, he enhanced the starting point by 12 months in the light of several aggravating features: (i) the arranging of a locksmith to gain access to the premises; (ii) the stealing of goods of high value; (iii) none of which had been recovered. Although it is suggested by Mr Jeremy Cheung, on behalf of the applicant, that the judge also treated the fact that the applicant had previously been employed by the shop as an aggravating feature, it is not clear to me from the way the judge expressed himself that he did in fact regard this matter as an aggravating factor.  Furthermore, although the applicant had a bad criminal record including 5 previous convictions for theft, the judge did not regard his history of repeated offending of offences of dishonesty as an aggravating feature.

10.  Giving the applicant a full one‑third discount from the enhanced starting point for his plea, the judge sentenced the applicant to 2 years and 4 months’ imprisonment.

11.  Although the applicant was still, at the time of his sentence, serving the last day of an earlier sentence of 8 months’ imprisonment passed in respect of an offence committed in 2006, the judge ordered the sentence in the present case to run consecutively, since the two offences were separated by more than a decade.

Grounds of appeal

12.  Mr Cheung argues, by reference to authority, that the judge gave undue regard to various aggravating features in assessing the applicant’s overall criminality (Ground 1); that he should not have enhanced the sentence because the goods were not recovered (Ground 2); and that the ultimate notional sentence after trial of 3½ years’ imprisonment was manifestly excessive (Ground 3).

Respondent’s submissions

13.  Mr Derek Wong, on behalf of the respondent, submits that the applicant obtained the services of PW2, whom he deliberately misled into cutting open the padlock, thus indicating that a high degree of planning was involved.  In no sense could the offence be described as opportunistic.  Furthermore, even though the offence did not involve a breach of trust in its classic sense, the applicant had made use of the privileged knowledge of his previous employment, thus enabling him to obtain a key to the side entrance, to know the opening hours of the shop and its security arrangements, and to know that there would be goods of high value in the shop.  Items of very substantial value had been stolen, which had never been recovered.

14.  Given the degree of planning and knowledge, Mr Wong argues that the applicant was akin to a professional burglar rather than an opportunist.  The applicant had 6 previous convictions, 5 of which were for theft.  Furthermore, he must have committed the present offence knowing that he was wanted by the police in relation to another theft offence committed 11 years earlier.

15.  Mr Wong accepted that the starting point had been enhanced by 40% if viewed in strictly mathematical terms, which might seem to be on the high side, having regard to the decisions in HKSAR v Sim Ka Wing[1] and HKSAR v Siu Pak Kin[2].  However, the facts of both cases were different and their aggravating features less.  He submitted that looking at all the circumstances of the case, the enhancement of 12 months’ imprisonment was neither wrong in principle nor manifestly excessive.

Consideration

16.  A starting point of 2½ years’ imprisonment is in the normal course the starting point for an ordinary non‑domestic burglary in the absence of aggravating or mitigating factors: see, for example, R v Wong Man[3]; HKSAR v Sim Ka Wing, at p 5; and HKSAR v Siu Pak Kin, at para 18.  However, it is not an impenetrable ceiling, bearing in mind that the maximum sentence for burglary is 14 years’ imprisonment on indictment.

17.  In the present case, there were a number of aggravating features.  The most serious aggravating factor was undoubtedly the theft of a very substantial value of goods, which were never recovered.  This was not an opportunistic burglary of non‑domestic premises and the removal of whatever items of value could be found inside; for example, its cash float or a few hundred dollars lying around, or items of small value.  These were goods essential to the business of PW1 and valued at more than HK$600,000, the loss of which he could doubtless ill afford.  That they were stolen not for profit but for revenge so as to harm PW1 and PW3’s business (assuming that to be true) does not mitigate the offence in any way: indeed, it might be argued that such a motive adds a particularly nasty gloss to an otherwise serious offence.

18.  Secondly, the actions of the applicant in obtaining the unwitting services of PW2 to cut the padlock to the premises, whilst all the while leading PW2 to believe that he was the owner of the shop, as well as the use of a key which the applicant must have duplicated and retained from his time as an employee of the shop, reveal considerable planning, premeditation and cunning on his part.

19.  Thirdly, the applicant’s criminal record of dishonesty and the commission of the present offence when he must have known that he was wanted for an earlier crime of theft is unlikely to dispel an appellate court’s concern that the applicant is a recidivist from whom the public needs protecting, even if he is more of a nuisance than a danger.  The judge may not have considered his criminal record an aggravating feature. However, that does not mean that the Court of Appeal cannot have regard to his record and antecedents when considering whether the overall sentence was in the circumstances manifestly excessive or wrong in principle.

20.  I can at this stage see no reasonably arguable grounds of appeal against sentence in this case.  This was no ordinary burglary, as a result of which the judge passed no ordinary sentence.  Although the enhancement was significant, so were the aggravating features, particularly the very high value of the stolen goods, none of which were recovered, and the premeditation and planning involved.  I do not at this stage see any reasonable grounds of appeal for suggesting that the enhancement of the starting point by 1 year, given the aggravating features present, was manifestly excessive or wrong in principle.

21.  The application for leave to appeal against sentence is refused.  Nevertheless, the applicant is reminded of his right to renew his application for leave to appeal to the Court of Appeal.  However, he is also warned of the consequences of so doing, which may include a direction for any loss of time spent in custody pending his appeal, if the Court were to come to the view that there was no justification for the renewal of his application.