HKSAR v. Lo Kam Fai

CACC 374/2014

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 374 OF 2014

(ON APPEAL FROM DCCC NO. 956 OF 2010)

________________________

BETWEEN

________________________

________________________

JUDGMENT
________________________

1.On 14 October 2014, the applicant appeared before Deputy Judge Terence Wai in the District Court and pleaded guilty to one charge of burglary, contrary to section 11(1)(b) and (4) of the Theft Ordinance, Cap 210 (Charge 1) and one charge of failing to surrender to custody without reasonable cause, contrary to section 9L(1) and (3) of the Criminal Procedure Ordinance, Cap 221 (Charge 2). On 29 October 2014, the judge sentenced the applicant to 28 months’ imprisonment on Charge 1, and 4 months’ imprisonment on Charge 2; the sentence on Charge 2 being ordered to run consecutively to the sentence on Charge 1, making 32 months in all. The applicant now seeks leave to appeal against sentence.

The facts

2.In 2001, the owner of a so-called “stone hut” situated at No 2, Shing Mun Sheung Village, Shing Mun Road, Tsuen Wan, emigrated to New Zealand, and left the hut to be taken care of by a married couple, Mr Lau and Mrs Lee, who would, on occasions, have barbecues there with their family.

3.On 12 September 2009, Mr Lau and Mrs Lee visited the hut and found that someone had interfered with the lock of the iron gate: the padlock and lock core of the iron gate had been changed.  On the following day, they returned to the hut with a locksmith and a police officer and, having opened the lock, they discovered that the wooden door of the hut had been prized open.  While there were no signs of ransacking inside the premises, it was evident that someone had been using the bed, pillow and quilt.  The locks were then changed.

4.Five days later, on 17 September 2009, Mr Lau and Mrs Lee returned to the hut and discovered that the locks of the iron gate had been damaged.  A locksmith was subsequently instructed to repair the locks again.

5.On 20 September 2009, a team of police officers saw the applicant emerging from the hut.  They intercepted him and entered the premises.  There they found a woman sitting on the sofa with the ceiling light and air-conditioner turned on.  A police officer further found a hammer, a screwdriver, a pair of pliers, an electric drill, and two damaged door locks on the table near the doorway.

6.The applicant was arrested.  Under caution, he said he had rented the hut from a Mrs Lee, but he was unable to provide any written proof of the tenancy or Mrs Lee’s contact details.  Mr Lau and Mrs Lee confirmed that they did not know the applicant.  Mr Lau subsequently confirmed that three bottles of wine costing HK$500[1] stored at the hut had been consumed; and that the locks of the iron gate and of the wooden door had been changed.

7.The applicant’s case was fixed for trial at the District Court on 17 February 2011: however, the applicant absconded.  He remained ‘at large’ until he was re-arrested on 27 June 2014.  On 3 July 2014, under caution, the applicant told the police that he had forgotten to attend court for his trial as he was busy at work.

Mitigation

8.The applicant was 38 years old at the time of his sentence.  He had had 13 appearances before the courts involving a total of 29 offences[2], of which nine were offences of dishonesty; namely theft, attempted theft, taking a conveyance without authority, robbery, possession of forged driving documents and going equipped for stealing.  It was said that he was married but had lost contact with his wife for over a decade.[3] He used to work as a car service company operator in 2009 and, later, for various companies on engineering projects.  As a result of his work in these projects, the applicant developed emphysema causing him shortness of breath.  At the time of his re-arrest, he lived with his girlfriend and the two daughters from her previous marriage.

9.The applicant submitted through counsel that he had been gainfully employed between 2010 and 2014 and tendered to the judge four payment slips in support of that submission.  He explained, in relation to Charge 1, that he had first entered the hut, knowing that no one had visited it for a long time, in order to take a shower and a rest, since he had had to work long hours.  In respect of Charge 2, he submitted that he chose to abscond because at that time his car service business was going well and he was afraid of being convicted.  He did not surrender himself to the authorities because he did not want to leave his girlfriend and step daughters.

10.It was submitted on the applicant’s behalf that according to a classification by the Agriculture, Fisheries and Conservation Department, the stone hut concerned was in fact a village or farm hut for the storage of tools and equipment for farming; he argued before the judge that the hut could not have been used as residential premises.  The judge pointed out that the photographs submitted by the prosecution depicted the presence of furniture and fittings, which showed that the hut had been used as a dwelling place.  The judge observed that while the hut might have had other purposes, there was no evidence to show what those other purposes were.  The applicant then argued that the hut might not have been used continuously as residential premises.  Finally, relying on the case of HKSAR v Lee Chiu Yui[4], the applicant submitted that a burglary of a vacated residential building should warrant a starting point below the usual guideline starting point of 3 years’ imprisonment.

Reasons for sentence

11.In sentencing the applicant, the judge noted that the photographs submitted by the prosecution showed that the stone hut had a living room, a kitchen and at least one bedroom, and that the hut had been partitioned, decorated, furnished and fitted as a dwelling.  He observed that while the hut might have been unoccupied for some time and might not have been meant to be a dwelling according to relevant government regulations, neither of these considerations could turn the hut, decorated and furnished as a dwelling as it was, into non-domestic premises.

12.The judge distinguished Lee Chiu Yui’s case from the applicant’s case, since Lee Chiu Yui (and the cases cited in that judgment) concerned residential buildings vacated for the purpose of demolition or re-development, whereas the hut in the instant case was retained and ready for domestic occupation at any time.

13.In respect of Charge 1, the judge adopted the usual starting point appropriate to a burglary committed in domestic premises, namely 3 years’ imprisonment.  Since the applicant had absconded for more than 3 years, the judge did not consider his plea a timely one (HKSAR v Lam Kin Chung[5]).  The judge remarked that absconding from trial was an indication of the applicant’s reluctance to accept responsibility for his actions (HKSAR v Ko Chun Hung[6]).  He declined to accord the applicant the usual one-third discount for his guilty plea and, instead, gave him a discount of 8 months only, resulting in a sentence of 28 months’ imprisonment.

14.In respect of Charge 2, the judge adopted a starting point of 6 months’ imprisonment, reduced it by one-third for the applicant’s guilty plea, and sentenced the applicant to 4 months’ imprisonment.

15.The judge found that the two charges were separate and distinct offences and ordered the sentence on Charge 2 to be served consecutively to the sentence on Charge 1, making an overall sentence of 32 months’ imprisonment.  In addition, the judge ordered the applicant to pay compensation to Mr Lau in the sum of $2,000.

Ground of appeal against sentence

16.In his Perfected Grounds of Appeal against Sentence filed on the applicant’s behalf on 10 April 2015, Mr Beel put forward a single ground of appeal, namely that the judge had failed to take into account and/or give sufficient weight to the following factors when sentencing the applicant on Charge 1.  First, the stone hut had been vacant since 2001.  Secondly, the applicant knew the hut to be unoccupied and took to squatting in it, as distinct from burgling it in the accepted sense.  Thirdly, the locks to the hut had been changed.  Fourthly, the only item that was stolen was some leftover wine. Fifthly, apart from the applicant, there was a female inside the hut upon the applicant’s arrest by the police.  Mr Beel argued that the offence committed by the applicant was not of a type normally encountered by the courts in burglary cases and should have warranted a lower starting point than 3 years’ imprisonment.

Consideration

17.Mr Beel wisely does not seek to argue that the occupation of a hut, which happened to be unoccupied at the time but was plainly being retained as a dwelling, was not a burglary of residential premises.  His general point is that there is a difference between squatting in such premises and burgling them in the accepted sense.  I am not so persuaded of the reasonableness of that argument.  I suspect people in Hong Kong would be rather alarmed to learn that the courts treated squatters who break into and occupy their homes, making liberal use of their facilities and possessions, any less seriously than those who break into their homes in order to steal and then leave.

18.There are, however, two matters in respect of sentence which I consider at this stage to be reasonably arguable on appeal, although they have not as yet been specifically articulated as grounds of appeal.

19.First, the judge accorded the applicant less than a full one-third discount for his plea in respect of Charge 1, because his absconding “rendered the administration of justice more costly and time-consuming” and was “anything but a timely plea”.[7]  He further found that the applicant’s “failure to come forward voluntarily indicates a reluctance on his part to accept responsibility for what he had done and to facilitate the course of justice”.[8] These may be logically defensible sentiments in themselves but there was another charge which catered for the applicant’s absconding, for which he was given a consecutive sentence of 4 months’ imprisonment.

20.There is a reasonable argument, therefore, that by reducing the discount for plea on Charge 1 because of the applicant’s absconding, the judge may have double-counted this factor in sentence, since failing to surrender to custody without reasonable cause was also the essence of Charge 2.  In real terms, it might be argued that the applicant received a penalty after plea of 8 months’ imprisonment for absconding rather than 4 months; arrived at by depriving him of 4 months discount he might have been entitled to on Charge 1, whilst at the same time adding 4 months in respect of Charge 2.  Accordingly, in the absence of an acknowledgment in the judge’s Reasons for Sentence of the principle of totality, it seems to me that it is reasonably arguable that the overall sentence passed on the applicant may be manifestly excessive and/or wrong in principle.

21.The second matter is that the one-third discount is not reserved only for those who plead guilty out of remorse, a quality which in many cases might be difficult to identify; although when it is identified, together, for example, with full restitution, it may amount to powerful mitigation.  Many plead guilty out of the practical realisation that, much as they would like to plead not guilty, the evidence is overwhelming or there is no reasonable defence.  Pleas of guilty must still be encouraged, whatever the defendant’s motive, in the interests of the timely and efficient administration of justice.  As Kirby J put it in the High Court of Australia decision of R v Cameron (2002) 187 ALR 65, at 81:

“The true foundation for the discount for a plea of guilty is not a reward for remorse or its anticipated consequences but acceptance that it is in the public interest to provide the discount.”

He went on to make clear that remorse was not “a precondition for the provision of a discount for a plea of guilty”.

22.It is not necessary for me to go further or to examine the merits of these arguments, which will no doubt be properly articulated in grounds of appeal and canvassed upon the appeal.  I am satisfied at this stage that they are reasonably arguable and, therefore, that leave to appeal against sentence should be granted.

Ms Chan Sze-yan SPP (Ag), of the Department of Justice, for the Respondent

Mr Trevor Beel, instructed by Hoosenally & Neo, assigned by Director of Legal Aid, for the Applicant

[1] The judge in his reasons for sentence referred to the wine being worth $300 (AB; page 10E-G), although the agreed Summary of Facts averred that it was worth $500 (AB; at para.6 on page 6).  However, nothing would seem to turn on this discrepancy.

[2] The applicant’s criminal record lists 29 previous convictions (AB; pages 16-21), although the judge in his reasons for sentence mistakenly referred to the applicant having 39 previous convictions (AB; page 10R).

[3] The judge in his reasons for sentence thought the applicant was unmarried (AB; page 10P), although it was put on his behalf that he was a married man who was estranged from his wife (AB; page 29M-O).  Again, however, nothing would seem to turn on this detail.

[4] HKSAR v Lee Chiu Yui (unrep., CACC 24/2014)

[5] HKSAR v Lam Kin Chung (unrep., CACC 27/2007)

[6] HKSAR v Ko Chun Hung (unrep., CACC 71/2007)

[7] Appeal Bundle; page 14B-D

[8] Appeal Bundle; page 14J-L