HKSAR v. CHENG HO WAI

CACC78/98

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 78 OF 1998

(ON APPEAL FROM DCC1337 OF 1997)

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J U D G M E N T

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Chan, CJHC (delivering the judgment of the court) :

1. The applicant pleaded guilty in the District Court to one count of burglary. He was sentenced to 20 months imprisonment. He now applies for leave to appeal against sentence.

2. The victim's husband was the brother of the applicant's cohabitant. The two couples lived next door to each other. The brother entrusted a key to his premises to his sister who in turn gave it to the applicant. Using the key, the applicant went into the victim's flat and stole some gold ornaments. While leaving the flat, the victim's domestic helper returned home. The applicant gave the explanation that the flat was burgled and that he went there to find out what had happened and was attacked. After the matter was reported to the police and when he was under investigation, the applicant admitted the offence. He led the police to his own flat and retrieved the stolen properties.

3. The applicant in this application basically raises two grounds. He has abandoned some of the grounds which were set out in his grounds of appeal regarding the conduct of the proceedings by his assigned lawyer. His main argument is that he had, in advance of the trial date, given notice to the court indicating that he would plead guilty to the charge. However, Deputy Judge Wright treated him as not pleading guilty at the first available opportunity. This is probably because the judge had not received the notice. The trial judge only gave him one-quarter discount instead of the usual one-third for his plea. The applicant now wants to have this reduction.

4. The other ground is that he is truly remorseful for what he had done. He is living with his mother who is at the moment still unaware that he is imprisoned. He also relies on his personal circumstances to ask for a more lenient sentence.

5. The applicant was clearly given the key to the victim's flat not for the purpose of going in and stealing the things inside. When he entered the premises with the intention to steal, and in fact he did steal the ornaments inside, he had exceeded the authority given to him. To that extent he entered as a trespasser and what he did was indeed burglary. There was indeed a theft but it was not just an ordinary theft or burglary because it was committed in breach of trust. This should have been an aggravating factor as the trial judge acknowledged in his Reasons for Sentence. We are slightly surprised to see that he had in effect given credit for this aggravating factor because at page 3 of his Reasons for Sentence he said:

"It seems to me that, looking at the matter overall and taking into account that this was a walk-in theft of unoccupied premises at the time, I would be justified in taking a slightly lower starting point."

The trial judge then adopted a starting point of 2 1/2 years. He gave a discount of one-quarter to the applicant and a 3 months reduction in recognition of his clear record arriving at an ultimate sentence of 20 months imprisonment.

6. It might be that the trial judge had not actually received the notice of indication that the applicant would plead guilty on the first day of the trial and had he done so, he might have given the usual one-third discount. However, it appears to us that the trial judge had been over generous in adopting a lower starting point. As we said, the offence was aggravated by a breach of trust and the starting point should have been 3 years or even more. Even if the trial judge had given one-third discount and recognition for the applicant's clear record, we would have thought that the final outcome would have been a sentence of 2 years. In these circumstances, a sentence of 20 months would be on the low side.

7. Regarding his mitigating factors, it would seem that the judge was made aware that the stolen items had been recovered. He was also aware of the applicant's financial difficulty which led him to the present offence. He was alerted to the fact that the applicant was obliged to pay maintenance to his ex-wife and child and his elderly mother. The judge had clearly taken into consideration all the applicant's personal circumstances. We do not think they were exceptional so as to call for a further discount. In the circumstances, we see no merits in the application which must be dismissed.