CACC 273/2010

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 273 OF 2010

(ON APPEAL FROM DCCC NO. 481 OF 2010)

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J U D G M E N T

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

1.  On 3 August 2010, following her earlier guilty plea to a charge of theft, the applicant was sentenced by HH Judge Tallentire to a term of 14 months’ imprisonment. She had pleaded not guilty to an alternative charge of burglary and that plea had been accepted by the prosecution.

The facts

2.  The facts were that on 15 February 2010, the applicant, and a male whose identity has not been ascertained went to a flat in Tsui Ping Estate in Kwun Tong which was occupied by a 90-year-old man (PW1) who was alone at the time.  They rang the doorbell, and when the elderly man answered the door, the applicant greeted him with words to the effect, “Happy Chinese New Year”.  PW1 did not know the applicant but as a result of his age and poor eyesight, he thought the applicant may be a friend and he therefore opened the door to let her in.  Both the applicant and the male entered the flat.  Once inside, the applicant went to a washroom where she took a watch valued at about $1,000 which belonged to PW1’s grandson and which she passed to her accomplice.  She then went to the bedroom of the premises where she opened a drawer and took out some clothes.  At the same time, the applicant stole $790 in cash from that drawer.  The applicant was arrested two days later, when she was returning to the premises and knocking on the door; and she made admissions with regard to the theft on 15 February and said that the return visit had been with a view to stealing again from this elderly victim.

3.  The applicant is 34 years of age.  She has six previous convictions for theft, two of which are identified in her record as shoplifting offences.  The others attracted sentences of four months’ imprisonment or DATC orders.  She also has convictions for possession of dangerous drugs and trafficking in dangerous drugs.  The longest sentence imposed on her in the past had been 18 months in prison.  The applicant was a member of a church group in Hong Kong, some of whom were in court at the time of sentence to support her.

4.  The learned judge adjourned sentence for background report to be prepared and during the adjournment, full restitution for the value of the cash and goods stolen was made to the victim by or on behalf of the applicant.

5.  In sentencing the applicant, the learned judge described this offence as “callous”.  The applicant had taken advantage of the confusion of an elderly and vulnerable victim and whilst the goods and cash which were stolen were not particularly high value, the fact that the applicant and her accomplice were invited into the premises by mistake, the judge said, “meant that the offence did not differ greatly from an offence of burglary.”  The judge emphasised that the offence to which the applicant had pleaded guilty was theft, not burglary, and, that the plea had been accepted by the prosecution. He observed that the payment of restitution, albeit late in the day, went some way to rectify what the applicant had done.  Thus, he said he took a starting point of 21 months’ imprisonment which he reduced by the conventional one third to reflect plea of guilty.  Hence the term imposed was 14 months.

6.  The single ground of appeal advanced on behalf of the applicant was that the starting point of 21 months was manifestly excessive and failed adequately to reflect the fact that full restitution had been made.

7.  Judicial authority shows that voluntary restitution is to be encouraged and it is to be regarded as mitigation: see, for example, HKSAR v Leung Shuk Man [2002] 3 HKC 424.  However, although restitution is always a mitigating factor that must be given weight, restitution at the very last moment, although it counts for something, must nonetheless be viewed in that light: see HKSAR v Wong Kam Tat [2002] 2 HKC 667 at 680.

8.  By taking as a starting point of 21 months’ imprisonment and reducing the sentence to 14 months’ imprisonment on account of the guilty plea, the judge has given the impression that he gave no credit by way of mitigating circumstance, for the restitution.  However, on a proper reading of his reasons for sentence it is apparent that he took restitution into account as a significant mitigating factor; but where he went wrong, in our respectful judgment, was taking it into account in arriving at his starting point.  As a matter of fundamental sentencing principle, the starting point is directed at the offence and its seriousness, not at the offence and mitigating factors other than the guilty plea.  In the event, for this reason and others to which we shall refer, the starting point was, in our opinion, too low, for which reason the error into which the judge fell does not, in the end result, avail the applicant.

9.  There was a complaint too that the judge erred in suggesting that the facts did not differ much from a burglary in that entry to the home which based upon confusion of the victim and that the judge was wrongly influenced thereby into treating this case as if it were a domestic burglary.

10.  This is an unmeritorious submission.  The judge expressly said that he was sentencing for the offence of theft.  Secondly, had the judge treated this as a burglary, there can be no question but that the starting point would have been dramatically higher.  Thirdly, the complaint places too much emphasis on labels.  The judge’s comment was entirely correct, that the circumstances did not differ much from that of a burglary; the entry to these premises was gained by conduct that was deceptive or akin, at least, to deceit.

11.  Given the erroneous approach by the judge to the starting point, we look at the matter afresh.  The judge was quite right in treating this case as a particularly mean or callous offence; for the applicant and her accomplice deliberately took advantage of PW1’s age and infirmity and of the fact that he was unprotected by the presence of others in order to trick their way into his home and steal.  There was no reason, further, why the judge could not have taken into account the fact that she returned to the premises two days later, and there was no suggestion that the return was for other than a nefarious purpose; such conduct was hardly commensurate with any sense of remorse.

12.  We are of the opinion that the starting point adopted by the judge was significantly too low.  An appropriate starting point could not in our judgment reasonably have been lower than 27 months’ imprisonment, and that fell to be aggravated by the persistence of this applicant in committing offences of theft in the last few years.  In our opinion the starting point including this aggravating feature should not have been lower than 30 months’ imprisonment.

13.  From that, the applicant was entitled to a one third discount because of her plea of guilty, taking the sentence down to 20 months’ imprisonment.  Some credit was to be given for the restitution and, taking into account the lateness of it, we think that an appropriate reduction would have been one of three months.  The resulting sentence would have been one in the region of 17 months and we emphasise that the applicant could not have had a justifiable complaint had the sentence being higher than that.

14.  It follows that this application is entirely without merit.  Indeed, we have given some consideration to the question whether we should exercise our powers under section 83I of the Criminal Procedure Ordinance, to increase the sentence, but have decided not to do so.

15.  In the result, the application for leave to appeal against sentence is dismissed.