HKSAR v. TIONGSON PATRICIA MANALAD

CACC268/2001

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO.268 OF 2001

(ON APPEAL FROM DCCC NO.479 OF 2001)

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J U D G M E N T

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

1. The applicant pleaded guilty in the District Court before H.H. Judge Wesley Wong to one count of burglary and one count of breach of condition of stay, namely overstaying, on 26 July 2001 and was sentenced to 2 years' imprisonment for the burglary and 6 months for the overstaying, the terms to run consecutively. The applicant now applies for leave to appeal against the sentences in respect of both these counts.

Facts

2. The facts to which the applicant admitted when she pleaded guilty to the two counts showed that the applicant was only permitted to stay in Hong Kong on an employment visa which expired on 16 September 1998.

3. Since early 1999, the applicant had been working part time at a florist shop owned by the victim. In the early part of 2001, the victim had lost the keys to his home at that florist shop. On 30 March 2001, the victim returned home to find watches, finger rings, and gold coins missing from his home. The matter was reported to the police.

4. On 1 April 2001, that is two days after the discovery of the theft, when the applicant was momentarily away from the florist shop, the victim, suspecting that the theft may have been related to the applicant, inspected the applicant's handbag which she had left in the shop and found from it the keys to his home which he had earlier lost at the florist shop. Police were called to the shop by the victim.

5. When the applicant returned to the shop and in her presence, the police conducted a further search of her handbag and found one of the watches lost by the victim from his home on 30 March 2001.

6. On the same day, police brought the applicant back to the applicant's home for a search. There the police found three wrist watches, three finger rings, four gold coins, a pendant and a collar pin which was later identified by the victim as being properties belonging to him and missing from his home on 30 March 2001.

7. Subsequently, when interviewed by the police under caution, the applicant admitted to having taken the home keys of the victim from the florist shop 3 months earlier and that, with those keys, she had entered his home and had stolen those items later recovered by the police from both her handbag and from her home. She also admitted that she knew of the expiry date of her permitted stay in Hong Kong but wanted to remain here to earn more money for her children.

Sentence

8. After hearing mitigation, the learned judge, in sentencing the applicant, noted that the burglary was also a breach of trust by the applicant. He further indicated that the only mitigation there is was the plea of guilty for which the applicant will be given the full discount. He rejected as mitigation the suggestion that the applicant committed the burglary because she was not paid overtime expenses.

9. For the burglary count, the learned judge took a starting point of 3 years, and for the overstaying, he took a starting point of 9 months, reducing both of them by the full one-third discount in view of the pleas of guilty, thus arriving at 2 years for the burglary and 6 months for the overstaying respectively. He ordered the terms to be served consecutively.

10. Three grounds of appeal have been put forward by the applicant. The first ground is that the learned judge was wrong to adopt a starting point of 9 months for the overstaying count. The second that the learned judge failed to take account of the totality principle in ordering the two terms to be served consecutively and the third ground being that in all the circumstances the sentence of 21/2 years is manifestly excessive.

The first ground

11. It has been pointed out by the respondent that there is no tariff laid down for overstaying offences and that the range is wide from a fine (at level 5) to a term of imprisonment up to 2 years.

12. It has also been pointed out to us that the taking up of employment during the period of the overstay is considered by these courts to be an aggravating factor.

13. We agree with those views. It is the length of the overstay that the court looks at and whether employment was taken up during the period of the overstay which is relevant to sentence.

14. We also take note of the submission by counsel for the applicant that before the time permitted for the applicant to stay in Hong Kong had expired, she was in fact granted a work visa permitting her to work in Hong Kong from 1991 until that visa expired on 16 September 1998.

15. In three of the cases to which we were referred by both counsel, there were imposed sentences of 6 months for overstaying. First of these cases is the case of Tseung Sau Tao, HCMA No.955 of 1992, unreported, where the appellant overstayed for a period of 4 years and 6 months. The second case where a six-month sentence was imposed was the case of Bhattarai, HCMA No.606 of 1996, where the appellant had overstayed for 11 months and had worked during the period of overstay. P. Chan J (as he then was) commented in that case that 6 months was not manifestly excessive and not wrong in principle in dismissing the appeal. However in Bhattarai's case, the learned judge there appears to have focused on the count of possession of another's identity card rather than on the overstaying count nor were any previously decisions cited to support his comments. In the third case where a six-month sentence was imposed, that is the case Iqbal Zahid, HCMA 560/1996, unreported, there Stock J (as he then was) reduced the six-month sentence to 3 months on the grounds that the appellant in that case had surrendered himself. In the judgment he had commented that 6 months was on the high side but not excessive. However, it is noted that in that case the appellant there had one previous conviction for overstaying. The period of the overstaying in that case was a period of 3 years.

16. We were satisfied that in each of those three cases where 6 month sentences were imposed for overstaying, there are distinguishing features from the present case.

17. In eight other cases which were cited or referred to this court by both counsel, the sentences for the overstaying ranged from 28 days to 3 months.

18. In all the circumstances and after careful consideration of the length of sentences imposed from all the cases referred to us, we are of the view that there should be some consistency and the proper starting point which should have been adopted here is one of 4½ months instead of the 9 months used by the learned judge below. On that basis, and giving to the applicant the full one-third discount for the plea of guilty this would result in a sentence of 3 months for the overstaying count.

19. The difference being one half from the actual sentence imposed, we take the view that the sentence imposed by the learned judge for that count was therefore manifestly excessive. We further note that in taking the 9 months as a starting point, the learned judge below had not been referred to any previous decisions of the appellant court to which we have been referred and had not made any references to any cases in respect of sentence. The starting point which he took appears to have been randomly selected without reference to any authorities.

The second and third grounds

20. These two grounds can conveniently be dealt with together.

21. It is submitted on behalf of the applicant that this is not a typical kind of burglary which calls for the normal type of sentence.

22. If it is different from the normal burglary, it is only due to the fact that there was no actual breaking in order to gain entry into the victim's home. However, the method by which the applicant gained entry underlines two important factors. Firstly, as noted by the learned judge below, it was a breach of trust on her part in stealing the home keys of the victim from the florist shop. Secondly, the theft of the keys and the actual burglary itself being some 3 months apart indicates very clearly that this offence had been pre-planned by the applicant for a substantial period of time before it was committed.

23. As for the submission by counsel for the applicant that this case could be treated in similar fashion to stealing from an employer, the difference between that and the present case is that when the applicant entered the victim's home to steal, she was in all respect a trespasser no different from a normal burglar whereas in a normal case of stealing from one's employer, the element of being a trespasser does not come into it.

24. One other matter that we should mention is this : although the case of Chow Chak Man [1999] 3 HKLRD 37 was not referred to in submission, we note that that case was included in the applicant's skeleton submission as well as the list of authorities. Quite apart from the exceptional circumstances appearing in the case of Chow Chak Man, where the judge below had called for a Community Service Order Report of his own volition, the correctness of that decision in Chow Chak Man by the Court of Appeal appears to have been called into question by a later Court of Appeal in the case of Wong Yiu Kuen, CACC No.463 of 2000, unreported. In the circumstances, Chow Chak Man can be of no assistance to us. We should add at once that in submission Miss Remedios appearing for the applicant indicated that she is not asking for a Community Service Order in this case.

25. Lastly, we also note with some concern on our part that while we have been told by counsel for the respondent at this hearing, that the value of the stolen item as alleged by the victim to be half a million dollars, that piece of information was quite surprisingly not put before the learned judge below, at least nothing before us show that it was. The value of the stolen goods in such a case as this one, is usually relevant to sentence and should always be put before the sentencing court.

26. For the reasons given, we are of the view that the learned judge below took a correct view of the gravity of the burglary count and the sentence passed.

27. In conclusion, we shall treat this application for leave as the appeal itself and for the reasons given, the appeal is allowed only to the extent that the sentence of 6 months for the overstaying count is set aside and reduced to one of 3 months. The rest of the order of the learned judge below is affirmed and the final result is that the total sentence passed on this applicant in respect of both counts is one of 2 years and 3 months.