HKSAR v. LAI FU HING

[English Translation – 英譯本]
CACC 388/2013

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 388 OF 2013

(ON APPEAL FROM DCCC 832 OF 2013)

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REASONS FOR JUDGMENT

Hon Poon J (giving the reasons for judgment of the Court):

Introduction

1. It was charged that the Applicant, on 4 February 2013, together with Chan Tsz-leung (Chan), having entered as trespassers the Green River Restaurant, Shop G2-2D&2E, Ground Floor, Fortuna House, 4 Tung Chi Street, Kwai Chung, New Territories, attempted to steal therein, contrary to section 11(1)(b) and (4) of the Theft Ordinance. On 21 October 2013, the Applicant pleaded guilty in the District Court before District Judge Sham and was sentenced to two years’ imprisonment.

2. On 16 May 2013, Chan pleaded guilty before District Judge Sham and was sentenced also to two years’ imprisonment.

3. The Applicant now applies for leave to appeal against sentence.  On 20 May 2014, having heard the application, we refused it and our reasons are given below.

The Facts

4. In the small hours of the material day, the restaurant in question was already closed.  The person-in-charge of the restaurant came to know from the anti-theft devices that someone had sneaked into the restaurant in an attempt to burgle, and therefore he made a report to the police.  In response to the report, police officers attended the scene and found Chan pulling down the roller shutter, and they apprehended him instantly.  The police officers later found at the back door of the restaurant a handcart, on which there were a safe belonging to the restaurant and a badminton bag.  The safe contained HK$99,000.00 in cash and the badminton bag contained some burglary tools, namely a crowbar and two screwdrivers.  At that time, the police officers found no sign of the Applicant.

5. The police officers immediately arrested Chan and administered a caution to him.  Under caution, Chan said that he committed the offence with an accomplice who had long escaped.  After investigation, the police found that the Applicant had driven Chan to the vicinity of the scene in a light goods vehicle before the offence was committed, and gained entry into a car park by using an Octopus card.  The registered owner of the light goods vehicle was the younger brother of the Applicant.  On 25 June 2013, the police arrested the Applicant.  The Applicant admitted the offence under caution, and alleged that it was Chan who had approached him and asked him to act together and that he was responsible for driving the vehicle and acting as a lookout.  Chan promised to pay him $500 as reward after the job was accomplished.  Apart from acting as a lookout, the Applicant also assisted Chan in moving the safe of the restaurant onto the handcart. Later, on catching a glimpse of the strobe light of the police vehicle, the Applicant escaped from the scene immediately.  The light goods vehicle in question was actually owned by the Applicant.  The police later also seized from the vehicle the Octopus card used for gaining entry into the car park.

6. The restaurant did not suffer any loss in the incident.

Mitigation

7. At the time of sentencing, the Applicant was 39 years old, married, and had a son and a daughter.  He had a record of fourteen convictions, nine of which were for theft.  For these nine counts of theft, the Applicant was sentenced in Tsuen Wan Magistracy (TWCC 2209/2013) to four months’ imprisonment on 10 September 2013.  The Applicant committed the offence because of financial straits.  He only played a relatively secondary role in this case. He also pleaded guilty frankly, and the restaurant in question did not suffer any loss.

Reasons for Sentence of the Trial Judge

8. The trial judge first adopted a starting point of two and a half years’ imprisonment for burglary of non-domestic premises.  He found that the Applicant’s involvement in a joint enterprise with Chan to commit the offence was an aggravating factor.  Furthermore, the trial judge saw the photographs taken at the scene and found that both the roller shutter and the switch box had signs of having been pried by using a crowbar or a screwdriver, and this also aggravated the offence.  For these two aggravating factors, the trial judge adjusted the starting point upwards by a total of six months to three years.  The Applicant could receive a one-third discount for his guilty plea, and the final sentence was two years after discount.

9. The trial judge therefore sentenced the Applicant to two years’ imprisonment, which was to run consecutively with the four months’ sentence in the other case, the magistrates’ court case TWCC 2209/2013.

Grounds of Appeal

10. The restaurant in question was not domestic premises.  Based on relevant precedents, the starting point is two and a half years’ imprisonment, to which, Mr Lo, counsel for the Applicant, has no objection.

11. The grounds of appeal of the Applicant can be reduced to three major points.

12. The first major point of appeal is that the trial judge erred in treating “the use of tools to damage a place for enabling the thief to gain entry into the premises” as an aggravating factor, because this factor was already taken account of in the original starting point of two and a half years’ imprisonment.  Furthermore, the tools used in this case were just tools commonly used in committing this crime, and there was nothing particularly serious about them.  Given that the Applicant had made a clean breast of everything, he had sincerely co-operated with the police, he was not the mastermind, and his criminal record was not as bad as Chan’s, the judge should not have enhanced the sentence by six months even though he jointly committed the offence with Chan.

13. Mr Lo cited paragraphs 8-9 in Secretary for Justice v Tsang Hon-yin Anthony, CAAR 5/2004 (16 December 2004) and paragraph 9 in HKSAR v Fan Kit-hung, CACC 62/2009 (14 July 2009) in support of the arguments of the Applicant.

14. In Secretary for Justice v Tsang Hon-yin Anthony, the Court of Appeal first confirmed in paragraph 8 that the starting point for sentence in a case of burglary of non-domestic premises in the absence of aggravating or mitigating factors was two and a half years’ imprisonment; and then cited in paragraph 9 another case HKSAR v Sim Ka-wing, CACC 450/2000 (30 May 2001) to further explain that the cases to which this starting point was applicable usually involved a measure of planning, and thus a degree of premeditation and planning was already built into the starting point.

15.   In HKSAR v Fan Kit-hung, the Court of Appeal referred to the aggravating factors set out in another case HKSAR v Cheng Wai-kai, CACC 338/2007 (11 June 2008): (1) the offence is carefully planned and skilfully executed involving the use of heavy instruments or equipment; (2) the offence iscommitted by two or more people; (3) the offence targets at substantial premises and involves substantial properties; (4) the offender is a professional burglar and not just an opportunist; (5) the offender has previous convictions, particularly previous convictions of a similar nature, and (6) the offender commits multiple offences.

16. What the Court of Appeal referred to in these cases are all established legal principles, but they are of no assistance to the Applicant.  As the trial judge rightly pointed out, the use of tools to commit the offence is an aggravating factor.  Furthermore, although the Applicant was not the mastermind, he acted in collusion with Chan in committing the offence which involved planning beforehand and that is also an aggravating factor (see point (2) in the preceding paragraph).  This court endorses the trial judge’s enhancing the sentence by six months.

17. The second major point of appeal is that it is unfair for the trial judge not to enhance the sentence of Chan for using tools to commit the offence and for jointly committing the offence with another person, while enhancing the sentence of the Applicant for these reasons.

18. As stated above, Chan was sentenced on 16 May 2013.  The trial judge adopted the same starting point, namely two and a half years’ imprisonment and, taking into consideration the fact that Chan was a habitual offender, he enhanced the sentence by six months.  However, the trial judge found that doubt existed as to whether or not Chan committed the offence jointly with another person, and therefore he did not use it as a reason to enhance the sentence.  Finally, since Chan pleaded guilty, the trial judge gave him a one-third discount and sentenced him to two years’ imprisonment.

19. When Chan was sentenced by the trial judge, the Applicant had not yet been arrested.  The trial judge was not aware of the existence of the Applicant, and therefore he did not use the fact that Chan committed the offence jointly with another person as a reason for sentence enhancement.  The trial judge also did not take the burglary tools as an aggravating factor because, as it can be seen from his Reasons for Sentence, there was no evidence to prove that Chan had ever used those tools for burglary.  The trial judge cannot be criticised for not taking these as aggravating factors.

20. Mr Lo submitted that the Applicant had made a clean breast of everything but was affixed with a degree of culpability more serious than Chan’s, and that it was very unfair to him.  Yet, as stated above, the trial judge sentenced Chan to two years’ imprisonment on the basis of the evidence available and the circumstances present at the time.  Even if the sentence imposed on Chan is lenient, it does not mean that the Applicant can have a reduction of sentence automatically: See HKSAR v Wong Kam [2013] 1 HKLRD 39 and HKSAR v Bunloun Jantakarn & Ors, CACC 397 & 466/2007 (19 August 2008).  More importantly, when handling the Applicant’s appeal, this court will not compare his sentence with Chan’s to decide whether his sentence is appropriate or not.  This court finds that the imposition of a sentence of two years’ imprisonment on Chan by the trial judge cannot constitute any unfairness to the Applicant.

21. The third major point of appeal is that it is truly improper for the trial judge not to give the Applicant a further discount for his frank confession that brought about his  prosecution this time.  The Respondent acknowledged that if the Applicant had not frankly confessed, the prosecution might not have sufficient evidence to have him convicted.

22. Yet, as the Court of Appeal pointed out in HKSAR v Ma Ming [2013] 1 HKLRD 806:

“32. When dealing with individual cases and when considering the totality of the sentence, the court, in exercising its discretion, can take into account the fact that the frank confession of the defendant provides the only evidence which supports the charge or charges and therefore make minor adjustments to the total sentence. To this we do not object. However, this factor does not support the argument that this kind of defendants must be given a further discount over and above the one-third discount. If the court does not give such defendants any discount in addition to the one-third discount, that does not constitute an arguable ground of appeal.

33.  In giving the one-third discount to the applicant upon his pleading guilty, the trial judge had already taken into account the applicant’s cooperation with the police, his voluntary confession and his guilty plea entered in court.  That he was denied a further discount in addition to the one-third discount cannot constitute a reasonable complaint, nor can it be a ground of appeal against sentence.  This ground put forward by Mr Ma is not substantiated.”

23. This court finds that the factors raised by Mr Lo were already subsumed within the discount received by the Applicant as a result of his guilty plea, therefore there is nothing improper for the trial judge not to give a further discount.

24. Finally, this court has to point out that a sentence of two years is not manifestly excessive, and there is no proper basis on which the Court of Appeal can interfere.

Conclusion

25. None of the grounds of appeal of the Applicant is substantiated.  This court refuses his application for leave to appeal against sentence.

Translated by the Judgment Translation Unit of the Judiciary and vetted by Mr Patrick W.S. Cheung, Barrister-at-law