HKSAR v. XIE GUOHONG

CACC 384 OF 2003

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 384 OF 2003

(ON APPEAL FROM NO. DCCC 358/2003, DCCC 784/2003 )

_______________________

________________________

_______________

J U D G M E N T

_______________

Hon Yeung JA (giving judgment of the Court):

1. The applicant, Xie Guohong (a two-way permit holder from the Mainland) was arrested on 6 March 2003 at the LoWu control point when he was leaving Hong Kong. He was subsequently brought before HH Judge Toh in the District Court on four counts of burglary to which he pleaded guilty.

2. The four burglaries of non-domestic premises (three construction sites and one University laboratory) took place in the months of January and February 2003 and the value of properties stolen ranged between $2,600 to over $330,000 amounting to a total of about $470,000.

3. The applicant has six previous convictions. Apart from immigration offences, the applicant was also convicted of possession of dangerous drugs and common assault.

4. The judge adopted the tariff starting-point of 30 months' imprisonment for each of the charges and discounted it by one-third to reflect the guilty pleas. Parts of the sentences were ordered to be served consecutively making a total of 60 months' imprisonment. The judge also activated a one-month suspended sentence imposed for an immigration offence.

5. The judge referred to the applicant's "appalling record". It was said his only ambition in Hong Kong was to make quick money and that he targeted the construction sites because he knew what he wanted. The judge also emphasized that none of the stolen properties was recovered.

6. The applicant now seeks leave to appeal against the sentences.

7. Ms. Remedios for the applicant, in her written submissions, points out that the total sentence of 60 months equals an overall starting point of seven years and six-months- a sentence beyond that of the District Court. She suggests that the judge failed to take this into consideration and had place excessive emphasis on the applicant's criminal record. She suggests that the total sentence is, in any event, manifestly excessive when comparing with other similar cases.

8. The applicant clearly is an un-welcomed visitor to Hong Kong. He repeatedly came to Hong Kong without authority and on some of those occasions, committed offences. On the occasions he came legally, he also committed offences.

9. Burglary is of course a serious offence and the fact that the applicant committed four of it as a visitor within two months makes it even worse.

10. The fact that the starting point adopted by the judge exceeds the jurisdiction of the District Court is not per se a valid ground of complaint. A District Court judge is entitled to adopt a starting point of more than seven years as long as the discounted sentence after a plea is not a full seven years. (See HKSAR v Li Yan (998 4 HKC 12). A two-year difference is more than "a meaningful discount".

11. Ms. Remedios refers to other cases of multiple burglaries and suggests that the sentence on the applicant is excessive. The facts of each case must be looked at to determine the overall criminality.

12. However we still have to consider if the starting point is manifestly excessive.

13. We note that the applicant's "appalling record", as emphasized by the judge, does not include any conviction for burglary or any offence of dishonesty. With the exception of three offences, all his previous convictions relate to immigration offences.

14. The starting point of 30 months' imprisonment for each offence is clearly right. The judge was also right to take a more serious view of the matter when it involved four offences within a period of two months and when the value of the stolen properties amounts to over $470,000-a fact that perhaps distinguishes the present case from those referred to by Ms. Remedios in her oral submissions.

15. It is also relevant to emphasize that none of the stolen properties was recovered.

16. On the other hand, despite the aforesaid, we are persuaded that an overall starting point of seven years and six months is manifestly excessive.

17. We are of the view that an overall starting point of six years to be more appropriate. It should be reduced to four years to reflect the guilty plea.

18. To give effect to such decision, we order that ten months of the 20 months on each of the 2nd and 3rd charges, and eight months of the 20 months on the 4th charge to run consecutively to the 20 months on the 1st charge. The sentence on the four counts of burglary is four years' imprisonment.

19. The suspended sentence of one month's imprisonment was rightly activated. The total sentence should be 49 months' imprisonment.

20. We grant leave to appeal against sentence. We treat the application as the appeal proper. The appeal is allowed to the extent indicated.