HKSAR v. Tsang Chun Yin

CACC 170/2017
[2018] HKCA 94

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 170 OF 2017

(ON APPEAL FROM DCCC NO. 899 OF 2016)

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Before: Hon Lunn VP and Cheung JA in Court

Date of Hearing: 9 February 2018

Date of Judgment: 9 February 2018

Date of Reasons for Judgment: 14 February 2018

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REASONS FOR JUDGMENT

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Hon Lunn VP (giving the Reasons for Judgment of the Court) :

1.With leave granted by McWalters JA on 15 December 2017 ^[1], the appellant appealed against the total sentence of 1 year and 10 months’ imprisonment imposed on him on 29 May 2017 by District Judge Dufton following his convictions, on his pleas of guilty, to two charges of burglary, on 9 and 29 April 2016 respectively, contrary to section 11(1)(b) and (4) of the Theft Ordinance, Cap. 210, and one charge of attempted burglary, on 29 April 2016, contrary to section 11(1)(a) and (4) of the Theft Ordinance, Cap. 210, and section 159G of the Crimes Ordinance, Cap. 200. We allowed the appeal and said that we would give our reasons for doing so in due course. That, we do now.

Facts admitted by the appellant

2.At time of the commission of the offences, the appellant was an undergraduate student of the City University of Hong Kong. The offences were committed in two different rooms inside Block 1, City University Student Hostel, 81-83, Tat Chee Avenue, Kowloon Tong, Kowloon.

Charges 1 and 3

3.The burglary and attempted burglary, the subject of Charge 1 and Charge 3 respectively, occurred in Room 302A of which Mr San Hong Chun was the occupant.  That room shared a bathroom with Room 302B.  At about 6:30 pm on 9 April 2016, Mr San made a report to the Warden of the hostel of the fact that he had discovered property missing from the top drawer of his bedside cabinet in his room, namely a red packet containing around $4,000 and a brown wallet containing around $2,700 (Charge 1).

4.At about 7:30 pm on 29 April 2016, whilst in Room 302A, Mr San noticed that the door of the adjoining bathroom was being opened slowly.  On his enquiry as to who was opening the door, the movement of the door ceased.  Mr San opened the door and saw the appellant, who said that he was looking for him, but he could not provide any reason for doing so.  Eventually, the appellant admitted stealing the money missing from Mr San’s room on 9 April 2016, which he promised to repay.  (Charge 3.)

5.A report was made to the police, who came to the hostel later that evening.  Having been arrested and cautioned, the appellant admitted that on an earlier occasion he had stolen a total of $6,700 from Room 302A.  He said that he did so out of momentary greed and had spent the money.  In a subsequent interview under caution, the appellant explained that on 9 April 2016 he had visited the occupant of Room 304B but found that no one was there.  Having noticed that the door of Room 302A was unlocked, he entered the room and stole the money.

Charge 2

6.On the evening of 29 April 2016, having been informed of the theft, Ms Cynthia Wang, the occupant of Room 1002B, viewed CCTV footage of the inside her room.  She saw that about 7:00 p.m. the appellant had entered and searched her room.  He used tissue paper to cover his hands.  He took a $100 banknote from her desk.  (Charge 2.)

7.Having been arrested and cautioned, the appellant admitted stealing the $100 banknote, which he said he had spent, having given way to momentary.  In the subsequent interview under caution the appellant said that he had gained access to Room 1002B by using the door key card which he had found placed inside a pouch which was hanging on the outside of the door, a place he knew to be where many residents kept their door key cards.

Mitigation

8.The judge received mitigation on behalf of the appellant on 3 and 20 February and 29 May 2017.  At the first hearing Ms Cheng Suk Yee, for the appellant, provided the judge with written submissions in which she indicated that she invited the Court to consider making a community service order.  The hearing was adjourned so that Ms Cheng could provide the judge with English translations of judgments in Chinese on which she sought to rely.  On 20 February 2017, the judge adjourned the hearing for the preparation of a background report and a psychological report on the appellant, but he declined to order a report as to the appellant’s suitability to be made the subject of a community service order.

Reasons for sentence

9.In sentencing the appellant, the judge said that he had considered the submissions that had been made in respect of the appellant’s academic and sporting achievements.  Also, he noted that while studying he had worked part‑time in order to contribute support to his family.  The judge went on to say:^[2]

“ Ms Cheng submits that this was a single fall from grace and that there is no chance that you will reoffend. I am told you acted out of greed without realizing the serious consequences. At the time you were indebted to the credit card company having taken out a loan to help your mother pay for medical expenses of your auntie in China. Wishing to reduce the debt you acted out of greed when you saw the door to Mr San’s room open.

I have been shown credit card statements to show your indebtedness but note all the money stolen was not used to reduce your indebtedness; that in the month prior to the burglary you had repaid slightly more and that you told the police you had spent all the money but forgot where you spent the money.”

10.The judge went on to note that the psychologist had said in his report that the appellant was aware of what he was doing but could not stop himself and that his findings “…did not suggest that you are suffering from emotional disorders or psychotic episodes which were associated with your acts of stealing.  Psychological treatment is not recommended.” ^[3]

Starting point for sentence

11.In determining the appropriate starting point to be taken for sentence, the judge said that he was satisfied that the offences had occurred in what were to be regarded as domestic premises, for which the starting point for sentence by “…a first offender of full age where there are no aggravating or mitigating features is 3 years’ imprisonment.” ^[4]

12.Having noted that at an earlier hearing Ms Cheng had asked the Court to deal with the appellant by making him the subject of a community service order, so as to enable the appellant to complete his degree, the judge noted that, in the period of the adjournment that followed the order to obtain a psychologist’s report, the appellant had completed his degree.  Further,henotedthatalthoughMs Chengnolongerpersisted in that submission, nevertheless it was the order sought by the appellant, supported by a student counsellor at the University.

13.Of the limits to the circumstances in which a court might order a defendant to be the subject of a community service order, the judge said that in the Secretary for Justice v Li Cheuk Ming ^[5] this Court said “… for serious offences, including bribery and corruption, a community service order would only be imposed where there are exceptional circumstances.” ^[6]

14.The judge said that Ms Cheng had relied on the judgment of this Court in HKSAR v Chow Chak Man & Another ^[7], to support the proposition that where “the burglary may be viewed as not serious a community service order may be imposed notwithstanding there were no exceptional circumstances”.  Further, the judge noted that Ms Cheng pointed to instances where community service orders had been made in the District Court in respect of offences of burglary.

15.Of the judgment inHKSAR v Chow Chak Man & Another,the judge said that it “…has been the subject of much criticism in subsequent decisions of the Court of Appeal”, noting thatin HKSAR v Wan Ka Kit ^[8] this Court said:

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

Exceptional circumstances

16.In his consideration of whether or not there were exceptional circumstances in the case of the appellant, the judge said that Ms Cheng had submitted that the burglaries “were not the usual type of burglaries”, inviting the Court to note “there was no prizing of the doors or cabinets; no violence was used; and that on being caught by Mr San, you confessed to the earlier burglary and promised to repay the money stolen.” ^[9]

Individual justice

17.Then, the judge said that he had considered the need for “individual justice” and in doing so had regard to the judgments of this Court in HKSAR v Leung Pui Shan^[10] and HKSAR v Yeung Kwun Kuen^[11]. However, the judge said that the circumstances of the commission of the offences were “very different” from the circumstances in the case of the appellant.  He noted that the appellants were 19 and 21 years of age respectively, whereas the appellant was 24 years of age.  Also, he noted that in the former case the offence was committed in the midst of “emotional confusion” and that in the latter case the appellant had “a long-term mental health problem”.

18.Next, having adverted to the judgments of this Court in HKSAR v Cheung To Ming and HKSAR v Chau Man Ying ^[12], the judge observed that, in appropriate circumstances, what fell to be regarded as “opportunistic burglaries”, had been treated by the courts as permitting a lower starting point to be taken for sentence than that to be taken otherwise:^[13]

“ Usually this is where someone passes by an open door or vacant premises and steals food or items of little value.”

19.In the result, the judge went on to determine that each of the two burglaries and the attempted burglary were to be regarded as “opportunistic” in nature.  Nevertheless the judge said that he was satisfied:^[14]

“…that your circumstances and the circumstances in which you came to commit the offences are not exceptional whereby a non‑custodial sentence was to be imposed.”

20.In the result, the judge stipulated a starting point for sentence of 2 years’ imprisonment for each of the offences.

21.Affording the appellant a discount of one‑third for his pleas of guilty, the judge stated that the sentence was reduced to 1 year and 4 months’ imprisonment for each charge.  However, in order to reflect the appellant’s consent to the order of compensation to be made to the victims, the judge reduced the resulting sentence in respect of Charge 1 by 2 months, to 1 year and 2 months’ imprisonment and that for Charge 2 by 1 month, to 1 year and 3 months’ imprisonment.

22.Having noted that the three offences were “…committed in different premises against different victims on different dates” the judge said that, subject to the totality principle, the sentences should be consecutive sentences of imprisonment.  Further, the judge noted that this Court had said in HKSAR v Ma Ming ^[15] that in considering the totality of sentence a court was entitled to have regard to the fact that the applicant’s confession was the only evidence in a case.  In the result, the judge said:^[16]

“ Taking into account all the circumstances of the three burglaries; only a small amount of money was stolen in the second burglary; full restitution has been made; your frank confession to the first burglary; and that the third burglary was an attempt on the same room as the first burglary, I am satisfied a total sentence of 1 year and 10 months’ imprisonment is appropriate.”

23.Then, the judge sentenced the appellant to 1 year and 2 months’ imprisonment in respect of Charge 1, 1 year and 3 months’ imprisonment in respect of Charge 2 and 1 year and 4 months’ imprisonment in respect of Charge 3.  He ordered that the sentences imposed in respect of Charges 2 and 3 be served concurrently with each other, but that 8 months of those sentences of imprisonment be served consecutively to the sentence of imprisonment imposed in respect of Charge 1.  Accordingly, the total sentence imposed on the appellant was 1 year and 10 months’ imprisonment.

24.In addition, the judge ordered that the appellant pay compensation to the two victims, namely $6,700 in respect of Charge 1 and $100 in respect of Charge 2.

Grounds of appeal against sentence

25.Mr H Y Wong submitted that the judge should have adopted a rehabilitative approach and considered making a community service order, given the mitigating factors: namely, that the appellant had pleaded guilty, was of good character, had expressed genuine remorse, that the offences were “opportunistic burglaries”, that the events were a single fall from grace and the chance of re‑offending was low.  Mr Wong invited the Court to note that in HKSAR v Chow Chak Man this Court quashed the sentence of 2½ years’ imprisonment imposed on the appellant following his conviction after trial of a charge of burglary and in substitution imposed a community service order.  Finally, Mr Wong submitted that the sentence imposed on the appellant was wrong in principle and manifestly excessive.

The respondent’s submissions

26.Ms Chan Sze Yan, for the respondent, submitted that “other than in the most exceptional cases, a community service order will rarely be appropriate for burglary or attempted burglary.” ^[17]  She invited the Court to note that in the judgment of this Court in the Secretary for Justice v Li Cheuk Ming ^[18], in the context of addressing the exceptional circumstances required before a sentence other than an immediate custodial sentence might be imposed for an offence of corruption, Chan CJHC, as Chan NPJ was then, said:

“ Generally speaking, exceptional circumstances can be categorised into personal exceptional circumstances, exceptional circumstances relating to the nature of the offence, and exceptional circumstances relating to consequences. The definition of exceptional circumstances varies from case to case.”

Chan CJ went on to say:

“ But obviously, a guilty plea, general family background and financial losses do not constitute exceptional circumstances.”

27.Ms Chan submitted that the appellant’s personal circumstances were in no way exceptional.  Although it was submitted that the appellant had used the money in order to repay the credit card debt, incurred to provide money for his aunt’s medical treatment, when the minimum monthly payment became due it was to be noted that the judge had found that not all of the stolen money had been used in that way.

28.Similarly, Ms Chan contended there were no exceptional circumstances in the circumstances of the commission of the offence.  Rather, there were aggravating factors.  First, the premises the subject of the attempted burglary, Charge 3, were the very same premises the subject of the successful burglary in Charge 1.  Secondly, the fact that the appellant used tissue paper in the burglary the subject of Charge 2 was indicative of a degree of planning.  Thirdly, in committing burglaries against premises occupied by fellow students the appellant was culpable of a degree of a breach of trust.

29.Finally, although Ms Chan accepted that no damage had been done in the course of the burglaries and there had been restitution of the stolen money, she submitted that those factors did not constitute exceptional circumstances relating to the consequences of the offences.

A consideration of the submissions

30.Itistobenotedthattheburglarythesubjectofthecharge in HKSAR v Chow Chak Man was of commercial, not domestic, premises.  Further, it was at the judge’s instigation that a probation officer’s background report and a community service report were obtained.  The making of a community service order was recommended for the 1^st applicant.  Having noted that in the Secretary for Justice v Li Cheuk Ming this Court had said that a community service order could be made, even for serious offences, such as bribery and corruption, if there were exceptional circumstances, the Court said:

“ While the circumstances here do not seem to be exceptional, at the very least it may be the burglary might not have been regarded as a serious offence by the particular courts concerned.”

Nevertheless, the Court quashed the sentence of imprisonment and substituted a community service order.

31.However, as Ms Chan pointed out in her submissions observations critical of that judgment of this Court have been made subsequently.  In HKSAR v Wong Yiu Kuen ^[19], Mayo VP, who was a member of the Court in HKSAR v Chow Chak Man, said of the judgment:^[20]

“ That was a rather exceptional case. One of the factors which appears to have been weighed by the Court of Appeal was that the judge himself requested that the suitability report be obtained. Having received a report which was undoubtedly favourable to the defendant, he then proceeded to impose a custodial sentence without giving any reasons why he changed what must presumably have been his view that this might be a viable sentencing option.”

Also, Mayo VP went on to observe that the Court appeared to have overlooked the fact that the “offence was, on its facts, too serious for this option to be utilised.” ^[21]

32.Those observations were cited with approval in the judgment of this Court in HKSAR v Wan Ka Kit in which the appellant’s appeal against sentence, namely that he be detained in a training centre, following his conviction for an offence of burglary in non‑domestic premises, was dismissed.  The appellant was 18 years and 10 months of age.  In the judgment of the Court Stuart‑Moore VP said:^[22]

“ 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.”

The seriousness of the offences

33.Although the judge accepted that all three offences were “opportunistic” in nature and, although in two of the offences the appellant was able to enter unsecured premises by simply walking into the room, it is to be remembered that in the burglary the subject of Charge 2 he used a key card to gain entry to the room.  To do so, he used his knowledge that it was a practice of some of the occupants of the hostel to keep their key cards in a pouch hanging on the outside of the door to the room.  That conduct, as McWalters JA noted in his judgment granting the appellant leave to appeal, is to be regarded as evidencing an element of a breach of the circumstances of trust that necessarily obtains amongst residents of a dormitory or hostel.^[23]

34.Moreover, in committing the offence the subject of Charge 3, the appellant was revisiting premises where he had been successful in stealing a not inconsiderable amount of money some weeks earlier.  That falls to be considered as an aggravating factor in the commission of the offence.  The judge was entitled to find, as he did, that the appellant had “decided to enter the room again to see if there was any more money you could take.” ^[24]

35.Further, whilst the theft of the $100 banknote was of a banknote displayed openly on the top of Ms Wang’s desk, the theft of the $6,700 was from a red packet and a wallet which were in a drawer of a bedside cabinet in that room and necessitated some measure of search.  Although the theft of the $100 banknote was from Ms Wang’s desktop, having viewed the CCTV film of Ms Wang’s room, the judge noted that the appellant “…had searched the room, including handbags to see what money you could find.” ^[25]  Also, he noted that the appellant’s use of tissues in that burglary clearly was to avoid leaving fingerprint impressions.

36.This Court has also viewed the CCTV film.  The appellant was inside the room for more than six minutes.  First, he picked up and searched a pink wallet which was on the desk. As the judge noted, he used tissues to do so.  Then, having picked up the one hundred dollar note from the desk, he picked up two cards which he placed in his trouser pocket.  Then, in sequence he searched a brown handbag on the desk, a cabinet drawer and finally a bag lying on the floor.  As he exited the room he returned the door key card to the pouch on the exterior of the door.

37.In the context of his finding that the burglary the subject of Charge 1 was “opportunistic” the judge was entitled to observe, as he did, “sight must not be lost of the fact that whilst opportunistic you stole about $6,700 not food or items of little value.” ^[26]

The appellant’s circumstances

38.Although the judge said that it had been submitted that the offences represented a “single fall from grace”, it is clear that they cannot be viewed in that way.  There were three separate offences, involving two rooms and two different victims committed over a period of several weeks.  As McWalters JA noted in his judgment, that conduct suggests of the appellant that he was willing to resort to crime “…whenever the opportunity presents itself ”.^[27]

39.It is to be noted that the judge found of the appellant’s motive for committing the burglaries that they were “…committed out of pure greed.” ^[28]  Earlier, the judge had noted that having been arrested and cautioned in respect of the commission of the first burglary, in which $6,700 had been stolen, the appellant had told the police that he had “...spent all the money but forgot where you spent the money.”  Of the submission made in mitigation that some of the money had been used to repay a credit card debt, incurred by the appellant to raise monies for his family in circumstances where his mother had raised money for medical treatment for his aunt,^[29] the judge noted that the repayment made after the theft of the monies on 9 April 2016 represented only part of the money that had been stolen and was less than had been repaid in the previous month.  The judge’s finding that the appellant acted out of “pure greed” accorded not only with what the appellant told the police on arrest for the first burglary but also with the judge’s findings as to the limited repayment of monies to the credit card company.

40.Having regard to the circumstances of the commission of the three offences and the circumstances of the appellant, it is clear that the judge was entitled to determine that they “are not exceptional whereby a non‑custodial sentence is to be imposed.” ^[30] 

41.Although we readily pay tribute to the judge’s thorough and very careful analysis of the factors relevant to the determination of the imposition of the appropriate sentence to be imposed on the appellant, in ourjudgmenthefellintoerrorindeterminingthattheappropriatesentence to be imposed on the appellant was 1 year and 10 months’ imprisonment.  With respect, that determination gave insufficient weight to the fact that the appellant was a relatively young man, of hitherto good character, pursuing his academic studies leading to a degree for whom the imposition of a sentence of imprisonment will have been a devastating shock which will reverberate, no doubt, in his future life.  In those circumstances, in our judgment the appropriate sentence to be imposed on the appellant is 18 months’ imprisonment. We propose to achieve that objective by ordering that 4 months of the sentences of imprisonment imposed in respect of Charges 2 and 3 be served consecutively to the sentence of 14 months’ imprisonment imposed in respect of Charge 1.

Conclusion

42.Accordingly, we allowed the appeal and quashed the judge’s order that 8 months of the sentences of imprisonment imposed in respect of Charges 2 and 3 be served consecutively and 8 months concurrently to the sentence of imprisonment imposed on Charge 1.  In its place, we ordered that 4 months of the sentences of imprisonment imposed in respect of Charges 2 and 3 be served consecutively to the sentence of imprisonment imposed in respect of Charge 1.  We did not disturb the other orders.

Ms Chan Sze Yan, SPP, of the Department of Justice, for the respondent.

Mr Wong Hay Yiu, instructed by Jimmie K. S. Wong & Partners, assigned by Director of Legal Aid, for the appellant.