HKSAR v. CHU HOI SHUEN AND ANOTHER

HCMA 700/2016

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 700 OF 2016

(ON APPEAL FROM ESCC 3601 OF 2016)

_______________

_______________

_______________

J U D G M E N T

_______________

1.  The appellants pleaded guilty to one joint charge of loitering with intent, contrary to section 160(1) of the Crimes Ordinance, Cap 200.  They were each sentenced to four months’ imprisonment. Their appeal against sentence was allowed at the appeal hearing.  These are the reasons.

Facts of the case

2.  Acting Principal Magistrate Joseph To (hereinafter referred to as ‘the magistrate’) summarized the facts as follows:

“2. On the evening of 13 November 2016, a cleaner Mr CM So saw the two defendants linger outside the gate of a construction site at No.271 Queen’s Road East, Wan Chai. Suspicious of the two defendants’ behaviour, Mr So walked across the road to observe them from a distance of some ten to 15 meters. The defendants peeped into the construction site through a gap in the gate and pushed the gate repeatedly. At some stage, the first defendant squatted down and peeped inside the construction site. Two to three minutes later, they walked away in the direction of the Racecourse. Mr So made a report to the police. A team of police officers responded and arrived shortly. They intercepted the two defendants outside a temple at No.371 Queen’s Road. To the police officers Mr So pointed out the two defendants as the persons he had seen at the gate of the construction site. The police declared arrest on the two defendants. Under caution, the first defendant admitted having peeped inside the construction site to see if there were any valuables to steal; as he found nothing of value there, he and the second defendant left; in addition, he admitted he had intended to steal copper wires. The second defendant said under caution that he had had the intention to steal inside the construction site, but as the gate could not be opened, he left the scene with the first defendant.”

Previous criminal convictions

3.  The first appellant, Mr Chu, has nine previous convictions.  All but two were for possession of a dangerous drug.  The two were for criminal intimidation in 2008 and theft by shoplifting in October 2016, when he was sentenced to seven days’ imprisonment.  Mr Chu had committed the present offence shortly after his release from jail.

4.  The second appellant, Mr Wong, has 33 previous convictions from 26 court appearances.  Since 2014, Mr Wong had been convicted of theft six times and possession of dangerous drugs once.  His latest convictions were in September 2016 when he was sentenced to two weeks’ imprisonment.  He was also sentenced to an extra month of imprisonment as a result of his breaching of a suspended sentence that was imposed in March 2016 for an offence of theft by shoplifting.  Mr Wong, therefore, also committed the present offence shortly after his release from jail.

5.  The magistrate ordered Drug Addiction Treatment Centre reports to be prepared on the appellants.  Although the appellants were found to be drug dependent, they were considered unsuitable for detention because of their persistent drug use.

The magistrate’s reasons for sentence

6.  In his written Reasons for Sentence, after stating the statutory maximum sentence of six months’ imprisonment for the offence, the magistrate gave the following reasons:

“8. In assessing the criminality of the defendants’ crime, it is noted that but for the fact that the gate had been properly secured and could not be opened, the two defendants would have entered the construction site to steal. In the court’s view, they have been extremely fortunate, in these circumstances, not to have been prosecuted with the offence of conspiracy to steal copper wires at the construction site.

9. While the court acknowledges that the defendants cannot be sentenced on the basis of an uncharged offence, this is not to say that the court should ignore factors that should properly be taken into account in sentencing the charged crime. In this case, the loitering offence was committed by more offenders than one. It involved active steps having been taken towards the commission of the underlying theft at a construction site, namely, the defendants acted together and attempted to open the gate to enter the construction site with full intention to steal. It is the court’s view that construction sites constitute vulnerable locations or premises for which added or enhanced protection from the court against theft offences is called for. Further, both Drug Addiction Treatment Centre Reports show that due to the defendants’ drug habits, the chances of the defendants re-offending are almost certain.

10. In light of all the circumstances of this case, the lowest starting point possible must be six months’ imprisonment.  The one-third discount for the defendants’ guilty pleas is, in the particular circumstances of the offence and of the defendants’ background, a more than meaningful discount from the statutory maximum of six months’ imprisonment.”

7.  The appellants were each sentenced to four months’ imprisonment after plea.

Grounds of appeal

8.  The appellants were unrepresented at the appeal hearing and did not provide any specific grounds of appeal other than the general pro forma ground of the sentences being too severe.

9.  Senior Public Prosecutor Daryanani set out in the respondent’s submissions various matters that this court might want to consider in favour of the appellants.  For the purpose of the present appeals, I only need to deal with the following three.

Magistrate did not invite counsel to submit on his intention to impose the statutory maximum sentence

“There is a general duty on the court which intends to impose a sentence or order which has not been in counsel’s mind when he mitigates, to indicate to counsel what he intends to do and invite counsel to make submissions on the matter.” Archbold Hong Kong 2017, at paragraph 5 - 38.

10.  According to the transcripts of proceedings, mitigation made on behalf of the appellants were very brief.  It is obvious that the statutory maximum sentence had not been on counsel’s mind when he mitigated.

11.  The oral reasons given by the magistrate were as follows:

“So, the offence took place at a public area. The 1^st and 2^nd defendant were lingering in front of the entrance gate of a construction site. All right, in all the circumstances of the case, choosing as low a starting point as possible, for the offence of which the two defendants stand convicted, the proper starting point is one of six months’ imprisonment. The two defendants pleaded guilty before me and are, therefore, entitled to one-third discount and they are sent to prison for four months.”

12.  There was no indication from the magistrate that he was going to impose the statutory maximum sentence.  Counsel for the appellant at trial did not have the opportunity to address the court on whether the maximum sentence should be imposed, perhaps to point to relevant factors or refer to authorities to suggest that the circumstances of the case was not the worst of its kind.

13.  There was no mention by the magistrate in his oral reasons that the starting point he had chosen was the maximum sentence and no explanation was given by the magistrate for imposing the maximum sentence.

14.  I find this failure to invite counsel to address the magistrate on the adoption of the maximum sentence unfair on the appellants.

Magistrate did not explain how sentence was enhanced

15.  The magistrate in his written reasons for sentence identified one particular factor as the basis for the need of “enhanced protection” from the court:

“It is the court’s view that construction sites constitute vulnerable locations or premises for which added or enhanced protection from the court against theft offences is called for.”

16.  This factor requiring “enhanced protection” was not mentioned in the oral reasons.  The magistrate did not invite submissions from counsel on this enhancement factor.  The magistrate did not rely on any authorities for this proposition.

17.  The magistrate had referred to the criminal records of the appellants at paragraph 7 of his written reasons under the heading of “Reasons for sentence”. One might assume that the records of the appellants was one of the factors being considered.  The magistrate, however, did not elaborate on how the criminal conviction records of the appellants had affected the sentences.

18.  There was no mention in either the oral or written reasons that the appellants had committed the present offence shortly after their release from jail, suggesting that the magistrate did not consider this aggravating factor.

19.  Furthermore, there is no indication either in the oral reasons or the written reasons as to how the six months “starting point” is broken down, that is to say, how much of the sentence was enhanced for the appellants’ criminal records and how much for the “enhanced protection” factor.

20.  The enhancement of sentence for a persistent offender includes the deterrence element and the need to protect the public against the offender.  The “enhanced protection” factor identified by the magistrate may very well overlap with the public protection element.  If that is the case, the appellants’ sentence might have been doubly enhanced.  We are, however, unable to ascertain whether such is the case.

Sentence manifestly excessive

21.  The last matter to be dealt with is whether the sentences are manifestly excessive regardless of how they were arrived at.

22.  It is common sense that the maximum sentence provided by law should be reserved for the most serious examples of the offence.

23.  The facts in our present case are straightforward.  The appellants loitered with an intention to steal.  They pushed at the gate to see if it would open, trying their luck, so to speak.  It would not yield and they left.  They were not found to be carrying any tools when they were apprehended.  Both appellants made frank admissions immediately after their arrest.  I would respectfully disagree with the learned magistrate’s finding that such circumstances would render the appellants’ commission of the offence the worst of its kind.

24.  In the case of HKSAR v Yeung Kwan Hung, CACC 217/2010, the applicant pleaded guilty to five charges of burglary, one charge of loitering with intent and one charge of possession of Part I poison.

25.  In relation to the loitering charge, the facts are that the applicant was seen by a car owner pulling the handles of two vehicles which were parked in meter parking spaces in Tsuen Wan.  The car owner made a report. The applicant was later seen by police officers acting in a furtive manner in the vicinity and was arrested.  Under caution, he admitted that he had tried to gain access to the parked cars to see if there was anything to steal.

26.  There the applicant was 39 years old and “has an appalling criminal record including 6 conviction of possession of dangerous drugs, 9 convictions of burglary and 1 for attempted burglary. The applicant had a long serious drug problem with psychiatric complications.”

27.  The applicant was sentenced by the trial judge to 12 months’ imprisonment for the loitering charge, which was beyond the statutory maximum sentence of six months’ imprisonment.  The Court of Appeal noted the maximum sentence and replaced it with a two-month sentence after plea, adopting a starting point of three months’ imprisonment after bearing in mind the applicant’s admission to the police when he was arrested.

28.  Even taking into account that the appellants in our present case were jointly charged with the offence, it would seem to me that the adoption of the statutory maximum sentence by the magistrate was manifestly excessive.

Decision

29.  By reason of the three matters discussed above, I allowed the appeals and set aside the sentence of four months’ imprisonment against each of the appellants.  I proceeded to consider the appropriate sentence in replacement.

Sentencing afresh

30.  I find that the circumstances of the commission of the present offence slightly more serious than that in the case of Yeung Kwan Hung because of the offence being committed by two people.  It is noted that the Court of Appeal there had already taken into consideration the “appalling” record of the applicant when imposing the three-month sentence.

31.  I find that there is an aggravating factor in each of our appellants’ case in that they both committed the present offence shortly after their release from jail.  The sentence imposed previously was not able to deter the appellants from committing further offences.  There is, therefore, a need to enhance the sentence to try to achieve the desired deterrent effect.

32.  I find that an appropriate starting point is that of three months’ imprisonment. This starting point does not take into account the appellants’ criminal record.

33.  For the one aggravating factor, I enhanced the sentence by one month, resulting in a sentence of four months’ imprisonment.

34.  The appellants were, therefore, each sentenced to 80 days’ imprisonment after granting them the full one-third discount for their guilty pleas.

35.  Lastly, I would like to express my sincere gratitude to Senior Public Prosecutor Daryanani for his fair and able handling of the appeal.