HKSAR v. Tsang Chun Yin

CACC 170/2017

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 170 OF 2017

(ON APPEAL FROM DCCC 899 OF 2016)

------------------------

Before:  Hon McWalters JA in Court

Date of Hearing:  6 and 15 December 2017

Date of Judgment:  15 December 2017

Date of Reasons for Judgment:  22 December 2017

_________________________________

REASONS FOR JUDGMENT

_________________________________

1.The applicant was charged with two charges of burglary, contrary to section 11(1)(b) and (4) of the Theft Ordinance, Cap 210 and one charge of attempted burglary, contrary to section 11(1)(a) and (4) of the Theft Ordinance, Cap 210 and section 159G of the Crimes Ordinance, Cap 200. He appeared before District Judge Dufton (“the judge”) on 3 February 2017 and pleaded guilty to these offences. On 29 May 2017 he was sentenced by the judge to a total period of 1 year and 10 months’ imprisonment.

2.The applicant subsequently filed a Notice of Application for Leave to Appeal (Form XI) against his sentence. 

3.At the hearing of the application I granted leave and said I would hand down my reasons for doing so at a later date.  These are my reasons.

The background to the offences

4.The Amended Summary of Facts which the applicant admitted and which was used for the purpose of his sentencing revealed that at about 7:30 pm on 29 April 2016 the applicant was found to be in a toilet which conjoined Rooms 302A and 302B of students’ accommodation in a dormitory building for City University students known as City University Student Hostels. This toilet was shared by the occupants of these two rooms and there was a door connecting the toilet to each of the rooms.

5.The occupant of Room 302A, (PW1) heard someone in the toilet and saw the toilet door entrance to his room slowly open.  He then opened the door of the toilet, saw the applicant inside and recognized him as a fellow student who resided in the dormitory.  Confronted by PW1 the applicant explained that he was in fact looking for him but he could not provide a reason why he was looking for PW1.  He eventually confessed to PW1 that he had stolen property from his room on 9 April 2016.  This property was one red packet containing HK$4,000 and a separate quantity of currency of about HK$2,700.  This property is the subject of the 1^st charge and the applicant’s unlawful presence in the toilet and attempted entry into Room 302A is the subject of the 3^rd charge.

6.The police were called and they questioned the applicant under caution.  In response to their questions the applicant admitted that he had stolen a total sum of HK$6,700 out of momentary greed and had already spent the stolen property.  He said that he had been intending to visit the occupant of Room 304B on 9 April 2016 but this person was not inside his room.  The applicant then noticed that the door of Room 302A was unlocked.  He opened the door of this room and when he found no one inside he entered it and then stole HK$6,700 from the cabinet.

7.Upon becoming aware of the conduct of the applicant, another student, (PW2) checked her room which was Room 1002B in the same dormitory.  She viewed CCTV footage of the room and saw that it captured the applicant entering her room at around 7 pm on 29 April 2016 and searching it.  It showed the applicant using a piece of tissue paper to cover his hand and stealing a HK$100 banknote from PW2’s desk.  This burglary was then reported to the police and became the subject of the 2^nd charge. 

8.When interviewed under caution in respect of it the applicant admitted having stolen the HK$100 banknote out of momentary greed and he said that he spent the sum on his meal. He explained that on the evening of 29 April 2016 he noticed that there was no one inside Room 1002B.  He then entered the room by using the key card placed inside the pocket that hung on the door.  He removed HK$100 from the desk in the room and put the key card back where he had found it.  He knew that the key card had been placed on the door of Room 1002B as many residents of the dormitory left their door ajar or placed their key cards on their doors in this manner.

The mitigation

9.Ms Flora SY Cheng appeared for the applicant at his sentencing hearing and informed the court of the applicant’s background.  He was 24 years of age at the time he committed the offences.  He had performed quite well in secondary school but had not acquired the academic results for entry into university.  He had, consequently, enrolled in an associate degree course at City University.  After obtaining this degree and then working for a year he was accepted for enrolment for a Bachelor of Arts degree.  Prior to sentencing he completed that degree.  In the course of growing up and as a young adult he had performed social work, become involved in community activities and was active in both the playing and administration of a sport called Woodball.

10.Ms Cheng emphasized that the applicant was deeply remorseful and submitted that there was no chance whatsoever that he would reoffend.  She said:

“He had a harsh lesson from all these proceedings. And he frankly admitted he committed the offence out of greediness and without realising the serious legal consequences.”

11.Ms Cheng urged the court to impose a non-custodial sentence so that the applicant could continue with his university degree which was only three to four months away from completion.  She submitted that the applicant satisfied all six criteria for a community service order and referred the judge to the decision of the Court of Appeal in HKSAR v Chow Chak Man & Anor[1] and to District Court cases where a community service order had been made in respect of burglary offences.

12.The judge responded to this submission by pointing out that the applicant was a mature adult, being 24 at the time he committed the offences and 25 when he was being sentenced.  The judge also referred to other Court of Appeal cases which had suggested that a community service order was not appropriate for burglary cases.

13.The court adjourned the mitigation to 20 February 2017 to allow time for Chinese judgments to be translated and for Ms Cheng to clarify a number of matters.

14.At the resumed hearing Ms Cheng provided further information about the applicant’s financially difficult background.  He had an aunt in the Mainland who was suffering from cancer and his mother had borrowed HK$80,000 in order to pay the medical expenses arising from the aunt’s treatment.  The applicant himself borrowed HK$40,000 from his credit card for the same reason.  In a letter to the court the applicant’s mother said:

“At that time, though Chun Yin just returned to study, he also wished to do something to help his aunt. He initiated to take out a loan, to be repaid through his credit card account in order to help his aunt. As a result, he shouldered a debt of HK$40,000 for the family starting from January 2015. I made use of the money first to repay my friend who lent me over HK$25,000 in November 2014 and used the remaining towards our then family’s expense. The said loan brought heavy financial burden to Chun Yin because he was unable to meet the minimum repayment amount of his credit card account in the subsequent months. By early 2016, he was still indebted in the sum of over HK$30,000 to his credit card account. This caused him to steal from others to reduce his indebtedness.”

15.Around this time the applicant’s father retired from his job of lorry driver and the applicant’s mother only earned HK$4,000 per month working as a waitress.  Between December 2015 to April 2016 the applicant worked part-time at the Miramar Hotel as a waiter but only earned HK$3,000 which was not sufficient to meet his daily expenses.  But, he had to stop working at the Miramar Hotel because by April the exam season was approaching.

16.So, when the applicant spoke of stealing out of greed it was not in the sense that he was stealing money he did not need or was stealing to indulge himself in living a luxurious lifestyle.  He was stealing in order to pay off his credit card debt[2] and to pay for his daily expenses.  It was in these circumstances that his admission that he was prompted by greediness to commit the offences must be understood. 

17.Ms Cheng informed the court that the applicant lived in the same dormitory building as both victims and knew them.  It was common for students to visit each other’s rooms.  Thus it was that on 9 April, on the occasion of the first charge, the applicant went to visit the occupant of Room 303B. Ms Cheng said she was instructed that after he found that his friend was not in his room he noticed that the door to Room 302A “was not locked, in fact, the door was closed very near to the hinge, but its not completely fixed into place.  That’s what he meant that the door is not locked.”  Effectively, the door was almost closed, but not shut, with a small gap which enabled passersby to see that it was not locked.  But the gap was not enough to enable anyone to look into the room without pushing the door open.  When the applicant found the occupant was not in the room he entered it.

18.Ms Cheng explained the second offence in the following way:

“On 29 April, it was his original intention to go up to the 10^th floor to look for PW2 and when he entered that room, finding PW2 was not there and there’s money just lying on the table, he acted out of greediness and impulsiveness and took the money.”

19.Ms Cheng informed the judge that the applicant had to use the key card to the room to open the door in order to gain entry to the room.  The key card had been left in a material storage pocket that hung on the door of Room 1002B.  Such lax security was, apparently, not unusual amongst students in this dormitory building.  The presence of the key card in the open pocket of this container was visible to passersby. 

20.The third offence took place immediately after the second offence.  After burgling Room 1002B the applicant went down to the third floor to visit a friend in Room 302B.  Ms Cheng explained what then happened:

“And after entering 302B he noticed that Mr Tong was not there, he entered the adjoining toilet and he admitted he remembered the next room, 302A, was the premises he had previously entered. On that occasion, on the 29^th, he wants to go in again to see if there’s anything more he can get and he frankly admit that, by pleading guilty to charge 3, he had the intent to steal therein.”

21.Ms Cheng accepted that there was an element of breach of trust present in the applicant’s conduct “because those other students in dormitory perhaps have trust in each other and usually leave the door open ...”

22.The judge was still not persuaded that the applicant’s case was one where it was appropriate to make a community service order.  But he concluded that he might be assisted by a background report and a report from a psychologist and so he adjourned the hearing to enable these reports to be prepared.

23.The court resumed on 29 May 2017, having received the two reports.  The Probation Officer’s Background Report set out the applicant’s family background, describing the applicant as having been “brought up from a working class family with stringent financial condition but caring and supportive parents.”  All the persons the Probation Officer spoke to were supportive of the applicant and keen to see him given a chance to rehabilitate himself.

24.The report of the psychologist revealed that the applicant was not suffering from any emotional disorders or psychotic episodes associated with his acts of stealing.  He was aware “of the wrongfulness of his actions.”  The psychologist made the obvious point that “his repeated acts of stealing suggested that he might not commit the offence at the spur of moment but he chose to put aside his conscience and go against the rule.”  This was consistent with the psychologist’s finding that “there were no reported signs of impulse-control or personality dysfunction” and that “there was no adequate evidence supporting that he had recurrent failure to resist impulse to steal.”

25.In conclusion the psychologist said the applicant accepted full responsibility for these offences and “showed adequate introspection and insights into his problems.”  Psychological treatment was not recommended and the risk of the applicant re-offending was assessed as low.   

26.At the resumed hearing Ms Cheng informed the court that she had explained the contents of the two reports to the applicant in the presence of his parents.  She then said:

“He accepts everything said in those two reports, which I consider to be favourable.”

27.Ms Cheng did not make any further submission in support of the court making a community service order and concluded her mitigation address by saying:

“Returning to the mitigation, your honour, I would urge you once again to consider all the favourable comments and recommendations made in those reports and to be as lenient as you can. There’s nothing I wish to add.”

The judge’s Reasons for Sentence

28.After setting out the facts of the case and the personal circumstances of the applicant, the judge referred to the mitigation that had been advanced.   He said that although it had been claimed that the motivation for the offence in charge 1 was to reduce the applicant’s credit card debt, not all the stolen money was used for this purpose.  He noted that the psychologist’s findings did not suggest that the applicant was suffering from emotional disorders or psychotic episodes which were associated with his criminal conduct.

29.The judge referred to the sentencing tariff of 3 years’ imprisonment for a single burglary of domestic premises and ruled that the student rooms that the applicant burgled could be “properly classified as domestic premises”.

30.He then discussed the sentencing option of a community service order and directed himself that such a sentencing option should only be employed for serious offences, such as burglary, when there existed exceptional circumstances.

31.He specifically referred to the comment by the Court of Appeal in the case of HKSAR v Wan Ka Kit[3] where it was said:

“We emphasise once more that other than in the most exceptional cases, a community service order will rarely be appropriate for burglary or attempted burglary.”

32.He noted that Ms Cheng maintained that such exceptional circumstances were present in this case.  These were sourced both from the personal achievements of the applicant, the unusual nature of the burglaries in that no force was used to gain entry, no violence was committed against the occupants and there was a full confession, even to the earlier burglary, and the applicant’s offer to repay what had been stolen.

33.The judge found that the applicant, being 24 years of age, was not a young offender and that the burglaries were “committed out of pure greed”.

34.The judge said that the first offence was committed only when the applicant noticed the door to Room 302A was not locked.  He said he would classify this offence as an opportunistic burglary.  He took a similarly generous approach to the second burglary, but in respect of the third burglary he had the following comment:

“  The fact that this attempted burglary was so soon after the second burglary suggests this was not opportunistic but rather that you were looking for rooms you could burgle.  The psychologist is of a similar view stating that the repeated acts of stealing suggests that you might not commit the offence at the spur of the moment.”

35.Notwithstanding these comments the judge still classified this third offence as opportunistic saying:

“ Not without some hesitation I am prepared to accept that you went to see your friend at room 302B and only when he was not at home did the opportunity arise to enter room 302A. In these circumstances the burglary can also be regarded as an opportunistic burglary.”

36.The judge then concluded that neither the applicant’s personal circumstances nor the circumstances surrounding the commission of the offences constituted exceptional circumstances.

37.The judge then turned to his assessment of the length of the prison term that was appropriate for the applicant. He said that as the burglaries were opportunistic he would adopt a starting point of 2 years’ imprisonment for each burglary which when discounted for the plea of guilty became 1 year 4 months’ imprisonment.  He then reduced the sentence for charge 1 by 2 months and the sentence for charge 2 by 1 month to give credit to the applicant for having made restitution.

38.The judge then addressed the issue of totality.  He commenced his consideration of this issue by reminding himself of what the Court of Appeal had said in its judgment in HKSAR v Ma Ming[4]:

“The court in Ma Ming did however say that when considering the totality of the sentence a court, in exercising its discretion, can take into account the fact that the frank confession of a defendant provides the only evidence to support the charge.”

and determined that a total sentence of 1 year 10 months was appropriate.  This he achieved by ordering that the sentences on charges 2 and 3 should be served concurrently with each other but that 8 months of these sentences should be served consecutively to the sentence on charge 1.

The Perfected Grounds of Appeal

39.There are four grounds of appeal.  The first ground of appeal is that the judge should have adopted a rehabilitative approach and considered the option of a community service order given the extensive mitigating factors in the case.  At the hearing of the application Mr Wong indicated he would not be pursuing his second and third grounds of appeal.

40.The fourth ground of appeal complains that the total sentence of 22 months for all three charges is manifestly excessive and wrong in principle in the circumstances of the case.  

The respondent’s submissions

41.The respondent opposed the grant of leave to appeal in respect of every ground of appeal.  Mr Joe HC Hui, Public Prosecutor, for the respondent, referred to the judgments of the Court of Appeal in HKSAR v Wan Ka Kit[5] and HKSAR v Po Yan Chuen[6] for the proposition that a community service order should rarely be given in burglary cases and only when there were present exceptional circumstances.  He submitted that no such circumstances were present in the applicant’s case.

42.In submitting that, contrary to what is averred in ground four, the final sentence imposed on the applicant was not manifestly excessive or wrong in principle, Mr Hui referred to a number of features of the applicant’s conduct which called for a severe sentence and not the lenient one which the applicant received. 

Discussion

43.The only issue in respect of this applicant is whether the judge erred in his conclusion that this was not an appropriate case for a community service order.  He reached this conclusion because he was not satisfied that in respect of this applicant there existed exceptional circumstances.

44.Exceptional circumstances may arise out of the circumstances surrounding the commission of the offence, the circumstances of the offender and the consequences of the offence.[7] Clearly, the more serious the offence, the more mitigating material is required to constitute exceptional circumstances.  This will be especially so where, as a matter of sentencing policy, the Court of Appeal has said that for a particular offence considerations of general deterrence must normally prevail over an offender’s personal circumstances.  Consequently, it seems to me, the first step for the court must be to form a view of the seriousness of the offence for when the court is determining whether mitigating material reaches the threshold of being exceptional circumstances it is doing so in respect of an offence of a certain level of seriousness.  This will require not just a consideration of the nature of the offence, here burglary, but where, in the range of seriousness in which an offence of this nature can be committed, the defendant’s conduct falls.  

45.It must also be remembered that there does not have to be any one circumstance that is exceptional.  There can be a number of circumstances, none of which, when viewed individually, can be said to be exceptional, but which, when taken together, can constitute exceptional circumstances.[8] Thus, it is necessary for a judge when considering such a submission to not only examine the merits of each circumstance relied on but to stand back and assess their cumulative effect.

46.Apart from finding that all the offences were “opportunistic offences” it does not appear that the judge found any other circumstance surrounding their commission that was relevant to the question of whether there were exceptional circumstances.  I shall address the “opportunistic offence” issue shortly.  But, in respect of exceptional circumstances that relate to the commission of the offence, Ms Cheng submitted that no damage was caused to the premises and no harm was caused to the occupants.  Although the judge correctly pointed out that these were really the absence of aggravating factors, these matters still have relevance to the judge’s task of forming a view of the seriousness of the particular offences before him.  As I have said, like any offence burglary can have a range of culpability in its commission and the absence of aggravating factors is relevant to the assessment of where within the range of culpability these particular offences fall.

47.In terms of premeditation, sophistication of execution, losses to victims, damage to premises and harm or risk of harm to the victims it is reasonably arguable that the applicant’s offences were towards the low end of the range.  In terms of risk of harm to victims it is relevant to note that when confronted by PW1 the applicant did not become violent or make any serious attempt to brazen it out but rather made a full confession, even to the extent of revealing his previous crime.  This, perhaps, reveals more about the character of the applicant than the seriousness of his criminal conduct.  On the other side of the scales, however, and what cannot be ignored, is that there was also present an aggravating factor, namely the element of breach of trust or, perhaps more accurately, the abuse of circumstances of trust, to which Ms Cheng in fact alluded.

48.I now turn to what is meant by an opportunistic offence and what it is about an opportunistic offence that lessens the culpability of the offender.  For here the judge was persuaded to characterize all these offences as “opportunistic” in nature and as a consequence of so characterizing them to reduce the starting point from 3 years’ imprisonment to 2 years’ imprisonment. So, the judge clearly saw this feature of the offences as a significant mitigating one.

49.Returning to the questions I posed, what is meant by an opportunistic offence and what is it about such an offence that lessens the culpability of the offender?  If it means no more than that the offence was not premediated then the extent to which that will lessen the culpability of the offender may very much depend on whether it is only an isolated lapse.  Where, as here, it is not an isolated lapse what does it tell us about the offender?  It may simply suggest that although the offender is not a professional criminal he is willing to resort to crime whenever the opportunity presents itself.  Such an opportunistic offender is hardly likely to excite the sympathy of the court; indeed, for such an offender the court may well incline to regarding the offender as being in need of a deterrent sentence.

50.Clearly, the most value that an “opportunistic offence” can have as mitigating the culpability of an offender is when the offender is involved in criminal conduct on only one occasion, the criminal conduct is unpremeditated and the criminal conduct took place in circumstances where the ease with it could be committed tempted the offender into an out-of-character lapse in judgment.  The commonly cited examples are where there is an open window or door which “invites” entry and which reveals tempting property in plain view.[9] The less the conduct can be portrayed in this way the less, it seems to me, it reduces the culpability of the offender.

51.In respect of this applicant I am particularly concerned that after being able to steal only HK$100 from Room 1002B and finding himself in the position where an opportunity was presented to him to re‑burgle Room 302A where he knew he had previously been able to steal HK$6,700, he does not appear to have hesitated in taking advantage of this opportunity.

52.Burglary is undoubtedly a serious offence but it is not an offence in respect of which the Court of Appeal has said, as it has said for the offence of drug trafficking, that the need for general deterrence must prevail over personal circumstances.  What the Court of Appeal has made clear is that it will not usually be appropriate to order a non-custodial sentence for burglary and that for a non-custodial sentence to be appropriate there must exist exceptional circumstances.  By emphasizing the rarity of the occasions when a non-custodial sentence will be appropriate it has raised the threshold of exceptional circumstances to quite a high level but that is all it has done; it has not imposed a prohibition on the imposition of such sentences.  A similar approach appears to have been taken in respect of bribery offences which feature in some of the authorities to which I have been referred on “exceptional circumstances”.

53.So, standing back from this offence it is, in my view, reasonably arguable, and I put it no higher than that, that the circumstances in which these offences were committed do not put them at a particularly high level of seriousness and do not require, because of their level of seriousness, that considerations of general deterrence must prevail over the circumstances of the offender.  As I have said, standing back and forming a view of the gravity of these offences is the first task the judge must perform and, it seems to me, it is reasonably arguable that in the present case this is not something the judge did.  To be fair to the judge, he may have felt limited in the sentencing options available to him by the strength of the comments of the Court of Appeal in the cases of Wan Ka Kit and Po Yan Chuen on which the respondent relied so heavily.

54.I now turn to how the judge addressed the personal circumstances that were advanced as part of the exceptional circumstances.

55.At paragraph 37 of his Reasons for Sentence the judge expresses his conclusion that the mitigating matters relied upon do not constitute exceptional circumstances.  But, his statement in this paragraph is very much a bare conclusion with little in the way of underlying reasoning to provide guidance on how he reached this conclusion.

56.However, under the heading of “Individual justice” the judge referred, indirectly, to the personal circumstances of the applicant when he considered the need for individual justice on the principles articulated in HKSAR v Leung Pui Shan[10] and HKSAR v Yeung Kwun Kuen[11].  In distinguishing these cases he said, at paragraph 27 of his judgment:

“You were 24 at the time of the burglaries, which you committed out of pure greed.”

57.Of course, it is stating the obvious to say that rehabilitative sentences are available to all offenders, not just to the young.  Depending on the circumstances it may well be that the older a person is the more may be required to persuade a court that a rehabilitative sentence is appropriate.  It will always be an offender sensitive issue and age will just be one of the considerations to which the court will have regard when considering its sentencing options.  As to the applicant’s admission that he stole out of greed, that has to be understood in the sense that I have explained it at paragraph 16 of this judgment.

58.I am of the view that it is reasonably arguable that in assessing whether the mitigating material reached the threshold of exceptional circumstances the judge may have attached too great a weight to the age of the applicant and not properly placed in context the statement of the applicant that he acted out of greed.  It is also reasonably arguable that even though the judge was not impressed with the exceptional nature of individual mitigating circumstances he may not have stood back and considered the cumulative effect of all these circumstances.  

Conclusion

59.For these reasons I granted the applicant leave to appeal his sentence but only in respect of grounds 1 and 4 of his Perfected Grounds of Appeal.

Mr Joe Hui PP, of the Department of Justice, for the respondent

Mr HY Wong, instructed by Jimmie KS Wong & Partners, assigned by DLA, for the applicant

[1] [1999] 3 HKLRD 37

[2] From the HK$6,700 proceeds of the first charge he used HK$1,705 to make the minimum payment due on his credit card debt.

[3] [2006] 3 HKLRD 9

[4] [2013] 1 HKLRD 813

[5] [2006] 3 HKLRD 9

[6] [2002] 2 HKC 172

[7] See Secretary for Justice v Li Cheuk Ming [1999] 1 HKLRD 63.

[8] See HKSAR v Chan Chong Chi HCMA 1233/1999, unreported, 11 October 2000, at paragraph 18.

[9] See, for example, HKSAR v Sim Ka Wing CACC 450/2000, unreported, 30 May 2001, where, at paragraph 9 of the judgment Keith JA said:

“The conventional starting-point can be lowered in the case of the opportunistic burglar, akin perhaps to the sneak thief who walks into an open office to steal whatever he can find.”

[10] CACC 317/2007, unreported, 5 February 2008.

[11] CACC 475 and 476/2012, unreported, 29 July 2013.