HKSAR v. YIP KENNY

CACC 324/2000

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 324 OF 2000

(ON APPEAL FROM DCCC 470 OF 1998)

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J U D G M E N T

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Stuart-Moore Ag CJHC (giving the judgment of the Court):

1. On 27 July 2000, the Applicant (D2) pleaded guilty in the District Court before Judge Whaley to offences of burglary and attempted burglary, both in respect of domestic premises. He was sentenced to concurrent terms of three years' imprisonment on each charge. The Applicant now seeks leave to appeal against his sentence.

2. The facts were straightforward. The offences were separated in time by about six days in March 1998. D2 was arrested with D1 shortly after they had committed the attempted burglary in charge 2. D2 and his accomplice (D1) had been observed trying to break into premises by villagers who then chased after them. They were soon caught with the assistance of the police. D2 admitted his intention to burgle. Police discovered that he was in possession of a Rolex watch and a number of pawnbroker tickets. Police investigations revealed that the Rolex watch was an item stolen in the burglary (charge 1) and that the pawn tickets related to a number of other items stolen in that burglary. D2 later confessed his involvement in both offences during interviews with the police.

3. The burglary in the first charge had led to a very substantial loss involving four watches, a gold coin with eight diamonds, US$5,000, 18,000 Thai baht and various items of jewellery. The combined value of those items came to about HK$194,000, of which about HK$108,000 was eventually recovered as the result of the investigations by the police.

4. D2 was 35 years old and he had a previous conviction consisting of two thefts in 1996 for which he had been sent to prison for a total of six months.

5. The judge adopted a global starting point of five years for these offences and taking into account D2's cooperative attitude to the inquiries police were making into these offences, he gave rather more than a one-third discount by passing the concurrent sentences of three years for each charge.

6. In his written grounds of appeal, D2 has made a number of complaints about his sentence. In the first of these, he pointed out that D1 received a sentence of fifteen months when he was dealt with by the District Court in 1998. He suggested in particular that the judge who had sentenced himself had paid insufficient attention to the very considerable difference between the two of them when their culpability was the same. He added, as it turns out correctly, that D1 was also a previous burglary offender.

7. The point being made by D2 does not take into account the fact that he was being sentenced by Judge Whaley for two offences, and that the judge in 1998 who sentenced D1 was only sentencing D1 in respect of the attempted burglary. For reasons which are far from clear and extremely difficult to understand in the light of the evidence against D1 on the first charge of burglary, D1 was nevertheless not prosecuted for the burglary (charge 1) and therefore D1 was only sentenced for his plea of guilty in respect of the attempted burglary (charge 2). It follows that the leniency of the sentence against D1 can have no bearing on the appropriate level sentence for D2.

8. It also has to be said that D2 could have been sentenced in 1998 as indeed he should have been. The reason that he was not sentenced in that year was that he absconded whilst on bail. As this court has said on many occasions, this will normally have a bearing on the discount given to a defendant who pleads guilty, as it is plain that he has not pleaded guilty at the earliest opportunity. This was not a matter even referred to by the sentencing judge in the present case and, in our view, could and should have been. The fact remains that D2 received a full discount of one-third and was given an additional discount for the reason expressed by the judge which we have stated already.

9. D2's style of life in the last two years while a bail absconder is also a ground put forward by D2 for asking this court to reduce his sentence. He has stated that he lived in some hardship as a fugitive from justice. This was a self-imposed hardship and cannot assist him on this application.

10. Next, it was said that the victim of the burglary in charge 1 had been able to recover most of his lost property. This is to an extent true, but it had little or nothing to do with remorse because it arose only as the result of D2 being found in possession of the pawn tickets relating to that property when he was caught in the act of trying to break into another house. This aspect of D2's mitigation would no doubt have carried minimal weight.

11. In his next complaint, D2 informed the court that he had confessed his offences in full. This is perfectly true, but it is also true to say that the judge paid regard to this when he passed the sentence.

12. D2 went on to complain that he had pleaded guilty at the first available opportunity, that is, not only by pleading guilty when he eventually appeared in court but earlier by admitting his guilt in his statement to the police. We have already dealt with the fact that D2 absconded on bail and did not plead guilty at the earlier opportunity. This aspect of the application takes the matter no further forward.

13. His next complaint was that his role was confined to that of a lookout which he described as a minor one. We disagree entirely. D2's role was important to the enterprise which he had jointly entered into with D1. He had a shared intention to burgle in charge 2 and in these circumstances he was as much involved in the offence as if he had been the culprit who tried to enter the house by using a screwdriver on the door which, as it happens, was the role of D1.

14. There is no material before us to justify interfering with the sentence imposed on D2. Accordingly, his application is dismissed.