HKSAR v. SUEN CHI WAI

CACC 90/2015

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 90 OF 2015

(ON APPEAL FROM DCCC NO. 58 OF 2015)

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J U D G M E N T

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1. The applicant seeks leave to appeal against the sentence of 2 years and 2 months’ imprisonment imposed on him by District Court Judge Douglas Yau on 3 March 2015, following his conviction on his plea of guilty to a single charge of burglary on 24 November 2014, contrary to section 11(1)(b) and (4) of the Theft ordinance, Cap. 210.

The facts

2. The applicant admitted that, having entered a residential building at 184, Fuk Wing Street, Cheung Sha Wan in Kowloon, he stole two strips of copper from the staircase of the 4^th and 5^th floors of the five floor residential building.  A metal gate at the main entrance of the building controlled access to the staircase.  There was one residential unit located on each of the five floors.  The copper strips were part of the copper connection between the lightning conductor on the top of the building and the ground.

3. A couple living on the 3^rd floor of the building saw the applicant at about 9:00 p.m. in the staircase at the 2^nd floor making his way upwards.  Having left the building, the couple returned 10 minutes later and heard the sound of chiselling on a hard object.  After the sound stopped they encountered the applicant on the 1^st floor as he was making his way downwards.  Taking him to be a renovation work, at their request, he agreed to remove some garbage bags and did so.  Then, they kept the applicant under observation.  Their suspicions having been aroused, they related their observations to a police officer in the street outside the building.  That officer intercepted the applicant, who admitted the theft of the copper.  The stolen copper, a pair of pliers, a screwdriver and a torch were found inside a rucksack and a bag carried by the applicant.

4. Having been arrested and cautioned, the applicant admitted that he had cut and removed the copper strips from where they were located on the 4^th and 5^th floors of the building.

5. The replacement cost of the copper strips was about $5,000.  The risk of fire or electrocution within the building was increased by the theft of the copper, which rendered the grounding of the lightning rod useless.

Reasons for sentence

6. In his reasons for sentence, the judge noted that it had been submitted on behalf of the applicant that, although the building was a residential building, the offence had been committed in the common area and that the court had been invited to take a lower starting point for sentence that would be appropriate for a burglary of domestic premises.  The judge went on to note that neither of the advocates in the case, “was able to find any authorities directly on point of whether a theft that took place in the common area of a residential building would be regarded as burglary of domestic or non-domestic premises”.

7. The judge found that the building was a residential building and “the burglary must therefore be regarded to have been committed on domestic premises.”  However, he accepted that there was no evidence that the applicant intended to enter any of the residential units to steal.  So, he determined that there was no risk of any of the occupants in the residential units being subjected to their premises being invaded by a burglar.  On the other hand, the judge said that, given that the building was a residential building, there was “…a risk of confrontation with the residents” and that in fact there was a confrontation between the applicant and the couple, albeit not one inside a residential unit.

8. In the result, the judge said of the appropriate guidelines for sentence that :

“ I find that the guidelines to be applied is that for domestic premises, but with a downward adjustment to reflect the lessened seriousness.”

9. Having determined that the burglary was “clearly premeditated” the judge stipulated a starting point for sentence of 2 years and 9 months’ imprisonment.

Aggravating factors

10. The judge went on to find that the applicant’s conduct in interfering with the system by which the lightning conductor on the roof was grounded through the use of the copper strips “will substantially increase the risk of fire or electrocution”.

11. Secondly, the judge said that the applicant’s criminal record was an aggravating factor in the commission of the offence.  He noted that the instant case was the applicant’s fourth conviction for the offence of burglary.  Further, he said that the applicant had been convicted of 10 offences of theft, the last of which was in May 2012, from which sentence he had been released on 15 May 2013.

12. In the result, the judge said that he increased sentence by six months’ imprisonment to reflect those aggravating factors.

Sentence

13. For those reasons, the judge sentenced the applicant to 39 months’ imprisonment.

Ground of appeal against sentence

14. In his grounds of appeal against sentence attached to Form XI, by which he gave notice of his application for leave to appeal against sentence on 12 March 2015, the applicant contended that the sentence was “too severe”, inviting the court to note that the offence was committed on the staircase and that he did not enter the homes of the residents.

The submissions of the respondent

15. The respondent opposes the grant of leave to appeal against sentence and supports the judge’s stipulation of the starting point for sentence and the enhanced sentence, to reflect the aggravating factors in the commission of the offence.

A consideration of the submissions

16. In my judgment, an arguable issue on the application for leave to appeal against sentence arises in respect of the starting point stipulated by the judge for sentence.  The place of the theft of the copper was a staircase in the common parts of the building.  Entry to the staircase was gained through a door to the main entrance in the building.  From the description in the Summary of Facts, it appears that the applicant was able to enter and exit the building freely through the door.  Although the judge identified as a factor justifying a great starting point for sentence in domestic burglaries the risk of the burglar encountering the occupants and thereby the risk of confrontation between them, with respect to him, it is difficult to see how the risk of confrontation on a staircase in the common parts of a domestic residential building would be any greater than the risk of confrontation on a staircase of a non-domestic building, for example the staircase of a shopping mall.

17. It is surprising that counsel were unable to assist the judge with authorities touching on the issue or at least sentences passed by fellow judges in respect of the theft of copper in similar circumstances.  Certainly, such theft is hardly unknown in Hong Kong.  In HKSAR v Chan Wai Keung[1] this Court was concerned with an application for leave to appeal against conviction only, in circumstances in which the applicant had stolen copper plate from the switch rooms on various floors of a residential building in Choi Wan Estate.  The issue of sentence was not canvassed in the appeal.  However, as was noted in the judgment of Macrae J, as Macrae JA was then, after trial District Court Judge Browne imposed a sentence of 20 months’ imprisonment on the applicant.  In doing so, the judge noted that the cost of replacing the copper was $100,000 and that in addition “this replacement has to be done as a matter of urgency because of safety factors.” [2]  The judge stipulated a starting point for sentence of two years’ imprisonment, which he discounted by four months to reflect the manner in which the trial had been conducted.

Enhancement of sentence

18. In my judgment, the judge was entitled to enhance sentence to reflect the aggravating circumstances of the commission of the offence, namely the creation of a risk to safety, and in having regard to the applicant’s criminal record.  The level of enhancement was within a range available to him.

Conclusion

19. For the reasons set out earlier, I am satisfied that there is an arguable ground of appeal in respect of the stipulation of the starting point for sentence taken by the judge.  Accordingly, I grant leave to appeal against sentence.

[1] HKSAR v Chan Wai Keung (CACC 441/2011; unreported, 26 September 2012).

[2] HKSAR v Chiu Wai Keung & Others (DCCC 710/2011, 17 October 2011).