HKSAR v. Wong Fung Chow

CACC 310/2015

CRIMINAL APPEAL NO. 310 OF 2015

(ON APPEAL FROM DCCC NO. 623 OF 2015)

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J U D G M E N T
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1.The applicant pleaded guilty before HH Judge C P Pang in the District Court on 9 September 2015 to one charge of burglary, contrary to section 11(1)(b) and (4) of the Theft Ordinance, Cap 210. On the same day, the judge sentenced him to 20 months’ imprisonment.

2.The applicant filed a Notice of application for leave to appeal (“the Notice”) against the said sentence on 15 September 2015.  He has sent two further handwritten letters to the Court in support of his application, dated respectively 18 November and 21 December 2015.

The facts of the case

3.In the early hours on 31 May 2015, police officers were conducting an anti-burglary operation in the vicinity of a restaurant situated on Sha Tsui Road, Tsuen Wan (“the Restaurant”).  At about 1:00 am on the same day, the applicant was observed by a police officer emerging from the rear lane of the Restaurant in a furtive manner.  He was intercepted and upon search found to be in possession of $2,719.50; all, save $540 of that amount, in coins.  Upon investigation, the applicant told the police that he had opened a fruit stall in Sham Shui Po and was taking the coins found on him back to his home in Tin Shui Wai.  He claimed to have entered the rear lane to obey the call of nature.

4.Seeing that the metal gate and wooden door to the rear entrance of the Restaurant were ajar and the drawer of the cashier counter open, the applicant was arrested for burglary.  Under caution, the applicant admitted that he had burgled the Restaurant, because he owed debts of over $100,000.

5.In a subsequent video recorded interview, the applicant stated that he had been to the vicinity of the Restaurant a few days earlier to look at the rear doors of various different shops and had eventually settled on the Restaurant as his target for burglary.

Mitigation

6.The applicant was 50 years old at the time of his sentence.  He worked as a dim-sum chef earning a monthly salary of $17,000.  It was submitted on his behalf in mitigation that the applicant was remorseful, had pleaded guilty at the first opportunity, had co-operated with the police and would not re-offend.  It was also said that the offence was not carried out with any sophisticated planning, accomplices or tools.

Reasons for Sentence

7.The judge acknowledged that the applicant’s last criminal conviction was recorded 10 years ago, and that his last conviction for burglary was in 1995.  Accordingly, he found it was not necessary to consider enhancing the sentence because of his criminal record.

8.He noted that the normal starting point for cases involving burglary of non-domestic premises, as in the present case, was 2 years and 6 months’ imprisonment: see HKSAR v Sim Ka Wing (unrep., CACC 450/2000, 30 May 2001).

9.According the applicant a full one-third discount for his plea, the judge passed a sentence of 20 months’ imprisonment.

Grounds of appeal against sentence

10.The applicant, acting in person, simply states in the Notice that the sentence imposed by the judge was excessive.  Before me today, he has said that the charge should have been one of theft and not burglary, since all he did was climb over a fence, without any tools, and push open a thin window and steal some coins. Accordingly, his sentence should have been commensurate with an offence of theft and not burglary.

The respondent’s reply

11.Ms Parwani, for the respondent, submits that the sentence is neither manifestly excessive nor wrong in principle, and no good reason has been articulated in support of the application.

Consideration

12.This was a burglary of non-domestic premises, namely a restaurant, in the early hours of the morning when the Restaurant had been closed and shuttered.  $2,719.50 in cash was stolen from the premises.  For such an offence, absent any aggravating features, the starting point, according to long-established appellate authority, is 30 months’ imprisonment (or 2 years and 6 months’ imprisonment).  As the Court in Sim Ka Wing held, at para 9:

“The conventional starting point of 2½ years’ imprisonment for the burglary of non-domestic premises relates to burglaries with no aggravating or mitigating features. Such burglaries will involve a measure of planning, and thus a degree of premeditation and planning is already built into the conventional starting point.”

The reconnaissance exercise conducted in the vicinity of the Restaurant by the applicant a few days earlier, whilst indicating a degree of premeditation and planning, also clearly meant that this was no opportunistic crime.

13.Accordingly, on the facts admitted before the judge, the starting point of 30 months’ imprisonment was entirely correct and in accordance with authority, as was the discount of one-third for plea.  There are no reasonably arguable grounds to challenge the sentence.

Conclusion

14.In the circumstances, the application for leave to appeal against sentence is refused.  The applicant is duly advised of his right to renew his application for leave to appeal against sentence to the Court of Appeal, but is also warned of the consequences of so doing, which may include a direction for any loss of time spent in custody pending his appeal, if the Court of Appeal were to come to the view that there was no justification for the renewal of the application.

Ms Audrey Parwani PP, of the Department of Justice, for the Respondent

The Applicant appeared in person