HKSAR v. SINGH SUKHCHAIN

CACC 323/2016

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 323 OF 2016

(ON APPEAL FROM DCCC NO 776 OF 2016)

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J U D G M E N T

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1.  By a notice of application for leave to appeal (Form XI), the applicant, who appears in person, seeks leave to appeal against the total sentence of 28 months’ imprisonment imposed on him by HH Judge G Lam in the District Court on 3 October 2016, following his pleas of guilty on the same day to two charges, namely burglary, contrary to section 11(1)(b) and (4) of the Theft Ordinance, Cap 210 (Charge 1), and attempted burglary, contrary to section 11(1)(a) and (4) of the Theft Ordinance, and section 159G of the Crimes Ordinance, Cap 200 (Charge 2).

The facts

2.  By Charge 1, it was averred that the applicant between 2 October 2015 and 10 February 2016 had entered into a residential flat on 2^nd Floor, 482 Chatham Road North, Hung Hom, Kowloon (“Flat 1”) as a trespasser, and stolen two television sets; whereas by Charge 2, it was alleged that he had attempted to enter a vacant residential flat on 6^th Floor, 16 Whampoa Street, Hung Hom, Kowloon (“Flat 2”) as a trespasser, with intent to steal therein.

Charge 1

3.  Having left Hong Kong on 2 October 2015, the owner of Flat 1 (PW1) returned to her flat on 10 February 2016 and discovered that the metal gate to her flat had been prized open.  Two television sets valued at HK$8,000 were missing.  She also discovered an empty box of Vitasoy inside her bathroom, which had not been there before.  The applicant’s fingerprints[1] were found on both the Vitasoy box and the edge of the metal gate.

Charge 2

4.  In the afternoon on 7 July 2016, patrolling police officers, alerted by some sounds, found the applicant outside Flat 2, the door to which was open.  Although there were prizing marks on the door, the watchman of the building, which was mostly vacant at the time, confirmed that the door lock had already been damaged before the incident.  No valuables were found inside Flat 2.  Having intercepted the applicant, the police found a pair of scissors, a hammer and an ice pick (“the Tools”) on the floor near the applicant.

5.  The applicant initially remained silent under caution.  Subsequently, however, he admitted in a video recorded interview that he was outside Flat 2 looking for something useful to steal, but could not find anything.

Mitigation

6.  The applicant had been before the courts on 6 previous occasions in respect of a total of 8 offences of dishonesty, involving 1 offence of burglary, 3 of going equipped for theft, 3 of theft and 1 of attempted theft.  Having arrived in Hong Kong from India in 1997, he was a married man with two children, although unemployed and reliant on social welfare at the time of the offences.  Concerning the burglaries, it was said on his behalf that no one was alarmed or put in fear by the applicant’s presence on either occasion.  Regarding Charge 2, it was submitted that when the applicant found the Tools in Flat 2, he initially decided to take them, but discarded them on the floor when he suddenly heard noises.

Reasons for sentence

7.  The judge commented that a defendant’s financial difficulties were not a mitigating factor.  He said that, although it would have been justifiable to consider a higher starting point since the applicant had a history of dishonesty, he would nevertheless give the applicant one last chance:

“The normal starting point for domestic burglary is 3 years’ imprisonment. The defendant is clearly a repeated offender of theft-related offences. I have all the reasons to raise the starting point for the purpose of deterrence, but I have decided not to do so and to give him one last chance.”[2]

8.  In respect of Charge 1, the judge adopted the normal starting point of 3 years’ imprisonment for domestic burglary, since Flat 1 was still PW1’s home, even though it was unattended for an extended period of time.  In respect of Charge 2, the judge considered that it was an “opportunistic burglary”, since it was accepted that the building was mostly vacant and the door to Flat 2 was already open.  Accordingly, he adopted a starting point of 2½ years’ imprisonment for the offence.

9.  The sentences on Charges 1 and 2 were then reduced to 2 years’ and 20 months’ imprisonment respectively for the applicant’s guilty pleas.  The judge said he considered an overall starting point of 3½ years’ imprisonment to be appropriate and, accordingly, ordered 4 months of the sentence on Charge 2 to run consecutively to the sentence on Charge 1.  The total period of imprisonment to be served by the applicant was, therefore, 28 months.

Grounds of appeal

10.  In his Form XI, the applicant merely stated that he had to take care of his wife and children and requested a reduced sentence. No further submissions have been filed with the court, although the applicant has addressed me this morning and asked for leniency.

Respondent’s submissions

11.  Ms Claudia Ng, on behalf of the respondent, submitted that the judge had been very lenient in not adopting a higher starting point in respect of Charge 1, so as to reflect the fact that the applicant was a persistent offender with a history of dishonesty.  It was pointed out that the applicant committed Charge 1 about 6 months after his release from prison for his last two convictions, namely theft and going equipped for stealing, in February 2015.

12.  In respect of Charge 2, Ms Ng accepted that it was an opportunistic burglary of premises situated in a building which was mostly vacant.  She submitted that, even if the starting point of 2½ years’ imprisonment was slightly on the high side, its effect was duly off-set by the generous sentence imposed on Charge 1; moreover, Charge 2 was a separate offence involving different premises committed several months after the burglary in Charge 1, yet the judge ordered only 4 months of the sentence on Charge 2 to run consecutively to the sentence on Charge 1.  Ms Ng has this morning also brought to my attention that the applicant was on court bail in respect of the offence in Charge 1 when he committed the offence in Charge 2, although this fact was not mentioned by the judge when sentencing.

13.  It was stressed that the global starting point of 3½ years’ imprisonment for both charges was appropriate and adequately reflected the applicant’s overall criminality.  Accordingly, the sentence passed could not be said to be manifestly excessive or wrong in principle.

Consideration

14.  I agree with Ms Ng that the individual starting point of 2½ years’ imprisonment adopted in respect of Charge 2 was on the high side: indeed, I consider it reasonably arguable, given the opportunistic nature of the offence in relation to vacant premises in a mostly vacant building, that it was manifestly excessive: see, for example, HKSAR v Chau Man Ying (unrep., CACC 439/2011).

15.  Be that as it may, the starting point in respect of Charge 1 was unexceptional and I can see no reasonable argument that the sentence passed on that charge was manifestly excessive or wrong in principle.  Indeed, it was entirely in line with current sentencing authority for the burglary of domestic premises.  Moreover, even if the starting point in respect of Charge 2 was arguably manifestly excessive, an appellate court will be looking at the overall sentence passed for two separate and distinct offences, admittedly one less serious than the other, in the context of a man with a history of dishonesty who has committed one of the offences whilst on bail for the other. The question it will ask is whether the overall sentence of 28 months’ imprisonment for the two offences was, in the circumstances, manifestly excessive or wrong in principle.

16.  I do not think it is reasonably arguable that an overall sentence of 28 months’ imprisonment for these two offences was either manifestly excessive or wrong in principle, even if the starting point in respect of Charge 2 may, when viewed in isolation, be said to be on the high side.  Since the charges were separate and distinct offences of a similar nature, the judge was entitled to make part of the sentence on Charge 2 consecutive to the sentence on Charge 1.  As it was, only 4 months of a sentence of 20 months after plea was ordered to run consecutively to the sentence on Charge 1, notwithstanding that the offence was committed whilst on court bail.  I do not consider it to be reasonably arguable that the extra 4 months’ imprisonment imposed in respect of Charge 2 was outside the range of sentences open to the judge when dealing with a second similar offence; particularly with a man with a significant record of dishonesty, who committed the second offence whilst on court bail for the first.

17.  The application is therefore refused.  The applicant is advised that he has the right to renew his application for leave to the Court of Appeal, but 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 of Appeal were to come to the view that there was no justification for the renewal of the application for leave.