HKSAR v. Raman Kumar

CACC 324/2017
[2018] HKCA 122

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 324 OF 2017

(ON APPEAL FROM DCCC NO. 151 OF 2017)

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Before :  Hon Lunn VP in Court

Date of Hearing :  1 March 2018

Date of Judgment :  1 March 2018

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J U D G M E N T

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1.The applicant, a Form 8 reconnaissance holder who appears in person, seeks leave to appeal against the total sentence of 33 months’ imprisonment imposed by Deputy District Court Judge A. Yim on 25 September 2017 following his conviction on his plea of guilty that day to a charge of burglary on 15 October 2016, in which he was charged jointly with the 1^st defendant at trial, (Charge 1), contrary to section 11(1)(b) and (4) of the Theft Ordinance, Cap 210, and a charge of handling stolen goods on 15 November 2016, namely a smart phone and its SIM card, (Charge 3), contrary to section 24 of the Theft Ordinance.

The facts

Charge 1

2.On 15 October 2016, Room A on the 6^th floor of a multi‑cubicle apartment in a nine‑storey building at 199, Reclamation Street, Yau Ma Tei, Kowloon, was burgled.  The building had no lift and no security guard was employed.  At about 13:00 hours that day Mr Zhang, one of the four occupants of Room A on the 6^th Floor of the building, discovered that the door to his room, which had been closed before he went to bed, was open.  His purple suitcase and black shoulder bag were missing.  They contained his property, including garments with an estimated value of $10,000, a permit identifying him as a security guard and personal documents.

3.CCTV footage in the building captured how the applicant and the 1^st defendant, both of whom were tattooed, entered Room A at around 10:33 hours on 15 October 2016 and leaving via the rear exit at 10:38 hours.  They had with them a purple suitcase and a black shoulder bag, both of which resembled the items stolen from Mr Zhang’s room.  The property was never recovered.

Charge 3

4.The applicant was arrested at his home, Room 6, 8/F, 159 Reclamation Street on 15 November 2016 for the offence of burglary and, having been cautioned, remained silent.  A Samsung S7 mobile phone with a SIM card, and a cap which matched the one worn by the person who committed the burglary in relation to Charge 1, were seized by the police.  The mobile telephone and the SIM card belonged to Mr Tsoi, from whom they were stolen in the early morning between 01:00 hours and 03:00 hours on 15 November 2016 whilst Mr Tsoi was talking to a friend as they sat on a bench in Shantung Street Rest Garden, Mongkok.

5.The applicant admitted that he had dishonestly handled the Samsung mobile telephone and its SIM card, knowing or believing them to be stolen property.

Mitigation

6.In mitigation for the applicant, Ms Panesar acknowledged that the starting point for sentence for an offence of domestic burglary was 3 years’ imprisonment as set out in the judgment of this Court in HKSAR v Lau Pang.[1]  Notwithstanding the fact that the applicant had not indicated his plea of guilty until two months after ‘Plea Day’, at which the date for trial had been fixed, Ms Panesar invited the judge to afford the applicant a discount of one‑third from that taken as the starting point for sentence.  She said that the applicant had intimated that he would plead guilty on his own initiative and had done so well before trial.

Reasons for sentence

7.In stipulating the starting point for sentence, the judge noted that the burglary had been committed without alerting the victim.  The applicant “took advantage of an unlocked door” when the victim was sleeping.  The judge adopted the “conventional starting point” for burglary of domestic premises of 3 years’ imprisonment.

8.In respect of the charge of handling stolen goods, having noted that the mobile telephone was valued at $5,500, the judge stipulated a starting point for sentence of 12 months’ imprisonment.

9.Having noted that the applicant accepted that he was a Form 8 reconnaissance holder at the time of the commission of the offence, the judge said it was an aggravating factor in the commission of the offence.  In consequence, the judge said that the starting point taken for sentence of each charge was enhanced by 3 months’ imprisonment.

10.Noting that the applicant had indicated a plea of guilty only after trial dates had been fixed the judge said that, having regard to the judgment of this Court in HKSAR v Ngo Van Nam [2], the applicant was entitled to 20-25% discount only to reflect his plea of guilty.  She noted that the applicant had indicated that he would plead guilty only after the case was set down for trial and counsel on fiat had been briefed.  In those circumstances, the judge said that she would afford the applicant a discount of 25% discount to reflect his plea of guilty. 

11.In the result, the judge sentenced the applicant to 29 months’ imprisonment for Charge 1 and 11 months’ imprisonment for Charge 3.  Noting that the two offences were distinct and separate offences, the judge ordered that 4 months of the sentence of imprisonment imposed in respect of Charge 3 be served consecutively to the sentence of imprisonment imposed in respect of Charge 1.  Accordingly, the total sentence imposed on the applicant was 33 months’ imprisonment.

Ground of appeal

12.Attached to Form XI by which the applicant gave notice of his intention to seek leave to appeal against sentence was a document in which the applicant asserted simply that his sentence was “very big”.  At the hearing, the applicant complained that his co‑accused, the 1^st defendant, had received a total sentence that was one month’s imprisonment less than the sentence imposed on him.  He said that the 1^st defendant had not only been convicted of the burglary of which the applicant had been convicted but also had been convicted of five charges of handling stolen goods.

The respondent’s submissions

13.In his written submissions for the respondent, Mr David Chan, submitted that the starting point adopted for the burglary charge was correct.  For the handling stolen goods charge, Mr Chan referred to the nine factors of aggravation identified in the judgment of the Court of Appeal of England and Wales in R v Bernard Webbe and cited in the judgment of this Court in HKSAR v Xiao Wei.[3]  He suggested that since the handling in the present case took place within a short time after the theft and involved a mobile telephone valued at $5,500 which was recovered, 12 months’ imprisonment was a proper starting point.

14.Further, he submitted that the judge was correct to treat the fact that the applicant committed the offences whilst he was permitted to be in Hong Kong as a Form 8 reconnaissance holder as an aggravating factor in the commission of the offences.  Also, he submitted that the judge was also correct to state that in all the circumstances, having indicated his plea of guilty only after the case was set down for her trial and counsel briefed, the applicant was only entitled to 20 to 25% discount [4] from those taken as the starting points for sentence.

15.Finally, Mr Chan submitted that, given that the two offences occurred one month apart at different places and involved different victims, the judge was correct to determine that it was appropriate that part of the sentence imposed in respect of the latter offence be ordered to be served consecutively to the sentence imposed in respect of the earlier offence and that, having regard to the principle of totality, the judge was correct to make the order that she did, namely that 4 months of the term of imprisonment imposed in respect of Charge 3 be served consecutively to the sentence of imprisonment imposed in respect of Charge 1.

16.In his oral submissions, Mr Chan pointed out that the 1^st defendant had not been convicted of five charges of handling stolen goods.  Rather, he had been convicted of one charge of handling stolen goods of property that had been stolen in five separate thefts (Charge 2).  He invited the Court to note that the judge had stipulated a starting point of 18 month’s imprisonment for Charge 2, rather than the starting point of 12 months’ imprisonment taken for the applicant in Charge 3.  Mr Chan said that the short explanation for the difference in sentences imposed on the applicant and the 1^st defendant was that the latter had been afforded a discount of one‑third, whereas the applicant had been afforded a discount of only 25% to reflect his late plea of guilty.

A consideration of the submissions

17.I am satisfied that there is no merit in the applicant’s complaint as to the apparent disparity in the total sentences of imprisonment visited on the applicant and the 1^st defendant.  The differences are readily explained by the different discount in sentence afforded to each of them.

18.I am satisfied that the judge’s approach to stipulating the appropriate starting point to be taken for sentence on the applicant for the offences of burglary and handling stolen goods and the sentences that she imposed was entirely appropriate.  Similarly, the judge’s determination to afford the applicant a reduced discount from the starting points taken for sentence to reflect the late stage at which he indicated that he would plead guilty was consistent with the judgment of this Court in HKSAR v Ngo Van Nam.  It lay within her discretion to afford him a discount of 25%, which lay at the upper level of the appropriate band.

19.However, in stating “the fact that a person committed an offence whilst awaiting the processing of his immigration claim amounts to an aggravating factor” is not, without more, an accurate summary of the approach to sentencing articulated by a series of judgments of this Court.  In the judgment of this Court in HKSAR v Sandagdorj & Another,[5] Macrae JA said of the circumstances of the 2^nd appellant, a “torture claimant”:[6]

“ Where someone in the position of the 2^nd appellant deliberately sets out to commit a crime which is aimed at the very community which has afforded him the privilege of remaining at liberty whilst this claim is being considered, and when the crime also has the effect of tarnishing this city’s reputation for order and security, of which he seeks to avail himself, then that is a factor which is capable of aggravating his sentence for the crime.

We do not say that someone sharing the 2^nd appellant’s status would aggravate his position in every case or in every crime. Obviously, there are crimes committed by refugees or torture claimants which do not affect the community at large or have any significant impact on Hong Kong’s reputation.”

20.There is no question that the burglary committed by the applicant in such an offence, and that the fact that the applicant was a Form 8 reconnaissance holder at the time of the commission of the offence was properly treated as an aggravating factor.  However, no consideration was given by the judge as to whether or not the circumstances of the commission of the offence of handling stolen goods was such a crime.  Moreover, it is to be noted that she enhanced sentence for each of the two offences by the same amount, namely 3 months’ imprisonment.

21.When the issue of the appropriateness of the enhancement of the sentence of imprisonment for Charge 3 was raised with Mr Chan during the hearing, he indicated that, having regard to all the circumstances of the commission of the primary offence of theft and the handling of the stolen goods by the applicant, it could not be said that the offence of handling of stolen goods was such that it tarnished the reputation of Hong Kong.  In those circumstances the offence was not one for which it was appropriate to enhance sentence.  However, he submitted that nevertheless the total sentence of imprisonment imposed on the applicant was entirely appropriate.

22.In addition, Mr Chan pointed out that the judge had not had regard to the fact that the applicant had been convicted of three offences of theft, by way of shoplifting, during 2016.  He invited the Court to note that, in particular, short sentences of imprisonment, of 8 and 3 days had been imposed for the second and third offences of theft.  Further, the applicant had been released from custody only in August 2016 and had gone on to commit the offences for which he was sentenced in October and November 2016.  That was a factor that the judge ought to have taken into account as aggravating the commission of the offences for which the judge sentenced the applicant.

23.In my judgment, having regard to the particular circumstances of the commission of the offence of handling stolen goods by the applicant, it is reasonably arguable, that the judge erred in enhancing the starting point for sentence of 12 months’ imprisonment by 3 months’ imprisonment.

24.Notwithstanding that determination, nevertheless I am satisfied that it is not reasonably arguable that the total sentence of imprisonment that the judge imposed on the applicant was manifestly excessive.  It was entirely appropriate to order that part of the sentence of imprisonment imposed in respect of Charge 3 be served consecutively to the sentence of imprisonment imposed in respect of Charge 1.  Further, I am satisfied that it is not reasonably arguable that she erred in ordering that 4 months of that sentence be served consecutively to the sentence imposed in respect of Charge 1.

Conclusion

25.Accordingly, I refuse the application for leave to appeal against sentence.

26.The applicant is advised that he has the right to renew his application for leave to appeal against sentence to the Full Court but is informed that if he does so, and the Full Court determines that the renewal is without justification, the Full Court may order that some of the time that the applicant has spent in custody pending the determination of his application shall not be reckoned as part of the term of his sentence.

Mr David Chan, ADPP, of the Department of Justice, for the respondent.

The applicant appeared in person.