HKSAR v. Ching Yiu Woon

CACC 323/2017

[2018] HKCA 309

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 323 OF 2017

(ON APPEAL FROM DCCC NO 713 OF 1991)

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Before: Hon Macrae VP in Court

Date of Hearing: 25 May 2018

Date of Judgment: 25 May 2018

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J U D G M E N T

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1.The applicant, who appears in person, seeks leave to appeal against a sentence of 3 years’ (or 36 months’) imprisonment imposed on him by Deputy Judge A Yim (“the judge”) in the District Court on 26 September 2017 following his plea of guilty to one charge of burglary, contrary to section 11(1)(b) and (4) of the Theft Ordinance, Cap 210. He had originally been jointly charged with another defendant, D1; however, upon his bail being extended by the District Court on 16 August 1991, the applicant and D1 both absconded. D1 was rearrested on 23 June 1992 and subsequently dealt with on 3 February 1993. The applicant, however, absconded for 25 years, before surrendering himself to Mongkok Police Station on 10 April 2017.

The Facts

2.The burglary took place in the early hours of 9 June 1991.  The applicant, together with others, had on that day entered as trespassers non‑domestic premises, namely, the showroom of Pak Pal International Limited (“Pak Pal”) in a building in Canton Road, Mongkok, where they stole HK$2,122,611.40 worth of tools and electrical equipment.

3.The manager of Pak Pal returned and discovered the burglary on 10 June 1991.  He found that the showroom had been broken into and ransacked; and the aforesaid property stolen.  He immediately reported the burglary to the police.

4.Five days after the burglary, on 14 June 1991, the applicant, together with another man, was observed by police officers conveying a number of cartons of goods by metal handcart.  Upon investigation, the officers discovered that some of the stolen goods from the Pak Pal burglary were inside Room 1371 of Sun Fong House, Sun Tsui Estate, New Territories (“Room 1371”).  When they entered Room 1371, they saw D1 moving some cartons, while the applicant and another man were hiding in the kitchen.  The stolen goods were identified by the proprietor of Pak Pal and returned to him.  However, the remaining missing goods, valued at $560,922.30, were never recovered.

5.The applicant was arrested, and on the next day, in an interview under caution, admitted committing the offence with D1 and two others.  In particular, he admitted that on 8 June 1991, D1 had suggested the burglary, as a result of which they visited the scene at about 6 pm that day.  At about 4 am the next morning they met at the showroom.  The applicant acted as look‑out, while the others broke open the front entrance.  They went into the showroom, removed the goods via the rear door and loaded them into a van.  They then drove to Room 1371, where the goods were stored.

Mitigation

6.The applicant was 56 years of age at the time of sentence and has an adult son.  He had had four previous court appearances, during which he had been convicted of 6 offences in the 1980’s, including Robbery in 1983 and Possession of an instrument fit for an unlawful purpose in 1986. He surrendered himself at his son’s behest.

7.Defence counsel in the court below accepted that the applicant could not expect to get a full one third discount, and urged the judge to grant the applicant a 25% discount in respect of his plea of guilty.

Reasons for sentence

8.In assessing the applicant’s criminality, the judge considered the following aggravating features, in particular:

(a) the burglary was a highly organized and sophisticated operation; it was carefully planned and skilfully executed in the early hours on a Sunday, with a van being specifically arranged to convey the goods;

(b) the offence was committed by no less than four persons acting in concert, targeting a showroom with property of substantial value;

(c) the loss resulting from the burglary was HK$2,122,611.40 in 1991; furthermore, stolen goods worth more than HK$560,000 had been disposed of within 5 days and never recovered;

(d) damage was caused to the doors of the showroom; and

(e) the applicant had relevant previous convictions for Robbery and Possession of an instrument fit for an unlawful purpose.

Given the presence of these aggravating features, the judge adopted a starting point of 4 years’ imprisonment for the offence.

9.Since the applicant had absconded for over 25 years, serious delay had been caused to the disposal of his case and the administration of justice.  The judge also commented that had the prosecution been able to charge the applicant for his failure to surrender to custody, he could have expected to receive an additional consecutive sentence of 6 months’ imprisonment.

10.In the result, the judge gave the applicant a 25% discount for his plea and sentenced the applicant to 3 years’ (or 36 months’) imprisonment.

Ground of appeal

11.In his Form XI Notice, the applicant avers that the sentence imposed was “slightly heavy”.  He further stressed that he surrendered himself voluntarily out of remorse.

Respondent’s submissions

12.Mr Ira Lui, on behalf of the respondent, has submitted that the judge correctly identified the basic starting point of 2½ years’ imprisonment for a non‑domestic burglary and correctly identified multiple aggravating features, which had been considered by this Court in HKSAR v Sim Ka Wing[1] and HKSAR v Cheng Wai Kai[2].  Mr Lui submitted that these features fully justified the enhancement of the basic starting point to 4 years’ imprisonment.  He further cited a number of authorities to demonstrate that the starting point adopted by the judge was within the acceptable range of sentence.

13.As for the discount for plea of guilty, Mr Lui submitted that the offence took place in 1991, and the sentencing practice at the time was to afford a defendant a discount within the sentencing judge’s discretion, but normally in the range of 25% to 30%.  The strength of the prosecution case was one of the factors to be taken into account.

14.It was contended, therefore, that the applicant had benefitted from a more favourable sentencing practice since absconding. Further, there could be no separate charge of failing to surrender to custody, since such an offence was not enacted until September 1995.

15.Having looked at various authorities, Mr Lui concluded that the 25% discount was within the judge’s discretion.  He pointed out that in HKSAR v Kwan Po Keung[3], a case involving a number of offences of dishonesty including burglary, the applicant had absconded for over 12½ years before voluntarily surrendering.  The Court approved a discount of 25%.  There was no reason for the applicant to be treated more generously.

Consideration

16.Much as a court would applaud the applicant in surrendering himself after 25 years, the fact is that this was an extremely serious example of the offence.  A starting point of 2½ years’ imprisonment is a conventional starting point for a non‑domestic burglary before consideration of aggravating and mitigating features: see, for example, HKSAR v Sim Ka Wing, at p 5.  It is not an impenetrable ceiling, bearing in mind that the maximum sentence for the offence on indictment is 14 years’ imprisonment.

17.Here, there were some extremely serious matters which went in aggravation of the offence.  The most serious was the sheer value of the stolen property, which was over HK$2 million in 1991, an enormous amount, which would be significantly greater in real terms 27 years later.  Of that amount, goods to the value of more than HK$560,000 in 1991 were never recovered.  The other main factor in aggravation of the offence is that this was a highly organised, premeditated and well‑planned burglary committed by a number of men acting in concert.  It was not what might be termed a “run‑of‑the‑mill” burglary of office or commercial premises, nor was it an opportunistic burglary in which, for example, a burglar enters non‑domestic premises through an open or unlocked door or window and helps himself to the odd item which has been left lying around.

18.I can see no reasonably arguable ground of appeal that the judge has erred in adopting a starting point of 4 years’ imprisonment.  As for the 25% discount accorded by the judge for plea, the applicant could not expect (as his counsel conceded) a one‑third discount, having absconded for more than 25 years.  As it is, there was no additional charge of absconding because the law was not changed until some years after he had absconded.  The applicant may in fact consider himself fortunate that he received a 25% discount for his plea.  He could not have complained if he had received a 20% discount; the higher discount was perhaps a recognition by the judge of the fact that the applicant had voluntarily turned himself in to the police.

19.I can see no reasonably arguable ground of appeal and the application for leave to appeal must be refused.  The applicant is reminded of his right to renew his application for leave to the Court of Appeal, but he 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 were to come to the view that there was no justification for the renewal of the application.

Mr Ira Lui ADPP (Ag), of the Department of Justice, for the Respondent

The Applicant appeared in person