HKSAR v. Leung Chi Wai

CACC 357/2017

[2018] HKCA 319

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 357 OF 2017

(ON APPEAL FROM DCCC 408 & 588 OF 2017)

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REASONS FOR JUDGMENT

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1.On 26 October 2017, in consolidated proceedings in the District Court, the applicant pleaded guilty before Deputy District Judge Ernest Lin (“the judge”) to two charges of burglary. The first charge, in DCCC 588/2017, was contrary to section 11(1)(b) and (4) of the Theft Ordinance, Cap 210. The second charge, in DCCC 408/2017, was contrary to section 11(1)(a) and (4) of the same Ordinance.

2.On the same day, the applicant was sentenced to a total period of 40 months’ imprisonment.

3.On 10 November 2017, the applicant filed a Notice of Application for Leave to Appeal (Form XI) against his sentence.

4.At the hearing of his application for leave I granted leave to appeal but only in respect of grounds 3-5 of the Perfected Grounds of Appeal and in respect of ground 3 only in so far as it related to Charge 2.  I said I would hand down my reasons for so deciding at a later date.  These are my reasons.

The background to the offences

5.Charge 1 concerned a domestic burglary of a storage hut situated at Rooftop, No 58 Lai Chi Kok Road, Mongkok, which was used by the occupier as a place of residence and storage. 

6.On 8 October 2016, at about 9:15 am, the occupier returned to his storage hut to find that it had been ransacked and a television, 4 tablets of Chinese medicine and one power drill were missing.  The total value of these items was $6,800.

7.A fingerprint was lifted from a metal box inside the storage hut and it was found to match the ring fingerprint of the applicant. 

8.Charge 2 concerned a burglary, some four and a half months later, of a shop situated on No 175 Apliu Street, Sham Shui Po which at the time was under renovation.  There were wooden boards erected outside the shop gate which were secured by a silver password number lock. 

9.On 26 February 2017, at about 11:20 pm, while conducting a patrol at this location, police officers saw the applicant on the top of an iron gate of the shop.  When arrested and cautioned, he admitted unlocking the silver password number lock and going into the shop to steal some construction tools because he was penniless.  The only item he stole was the silver password number lock valued at $20.

The mitigation

10.The applicant was 41 years old, single and had received education up to Form 2 level.  At the time of the offence, he worked as a delivery worker earning about $9,000 a month and had incurred a gambling debt of $100,000 which he was unable to repay. 

The judge’s Reasons for sentence

11.In his Reasons for Sentence, the judge adopted a starting point for the domestic burglary in Charge 1 of 36 months’ imprisonment and for the non-domestic burglary in Charge 2 of 30 months’ imprisonment.  He noted the presence of a number of aggravating circumstances in respect of both charges.  He said they were:

(i) Charge 1 was committed whilst the applicant was on bail for offence of theft from a vehicle;[1]

(ii) Charge 2 was committed in the same month of his release from prison, ie in February 2017; and

(iii) the applicant had a total of some 32 previous convictions of which 15 were related to offences involving dishonesty.

12.To take account of these aggravating factors, the judge enhanced the starting points for Charge 1 and Charge 2 by 6 months so that they became 42 months’ and 36 months’ imprisonment respectively.  Giving the applicant a one-third discount for his plea of guilty, the judge reduced his sentences to 28 months’ imprisonment for Charge 1 and 24 months’ imprisonment for Charge 2. The judge ordered that 12 months of Charge 2 should run consecutively to the Charge 1 sentence of 28 months, resulting in a total sentence of 40 months’ imprisonment.

The Perfected Grounds of Appeal

13.Mr Andy Hung, counsel for the applicant, advanced 5 grounds of appeal against sentence. 

14.First, he complained that when enhancing his starting point for Charge 2 the judge wrongly identified two separate aggravating factors – namely that the applicant committed the offence whilst on bail, and that he had multiple previous convictions – which, in substance, he submitted, boiled down to one single aggravating factor.  By treating them as separate aggravating factors the judge double-counted the same factor leading to a 6-month enhancement for each charge.  Mr Hung referred to the judgment of the Court of Appeal in HKSAR v Yu Chi Chiu[2] where this court said at page 407, paragraph 15:

“… as far as enhancing sentencing starting point is concerned, the factor of reoffending shortly after release is no different from that of having multiple similar convictions in the past. The former is at most proof of the latter.”

15.Secondly, Mr Hung complained that the judge erred in principle by enhancing the sentences of the two burglaries by the same amount.  The burglaries were of a different nature and Charge 1, but not Charge 2, had the serious aggravating factor of being committed whilst the applicant was on bail. 

16.Thirdly, Mr Hung argued that the enhancement of 6 months was excessive and referred to a number of cases where enhancements of less than 6 months had been imposed on persistent offenders.  He argued that by imposing a total sentence of 40 months’ imprisonment, after the one-third discount, meant that the judge had assessed the appropriate sentence before plea as being 60 months’ imprisonment.  He suggested that two months was the appropriate enhancement for Charge 2.

17.Fourthly, Mr Hung complained that the judge failed to adequately apply the principle of totality.  His fifth ground of appeal is simply that in all the circumstances the sentence is manifestly excessive.  

The respondent’s submissions

18.Mr Franco Kuan, Senior Public Prosecutor, for the respondent, argued that whilst the judge was making reference to two factual matters he did not treat them as two separate aggravating factors for the purpose of passing each individual sentence.  Mr Kuan said that the sentence of Charge 1 was enhanced on the basis that the applicant committed an offence whilst on bail; whereas Charge 2 was enhanced on the basis that he had a poor criminal record.  Mr Kuan submitted that a 6-month enhancement was appropriate for each factor.

19.Mr Kuan further submitted that even if the judge did err in his assessment of the amount of enhancement appropriate for Charge 2 that was offset by the judge’s overly lenient enhancement for Charge 1.

20.Mr Kuan also submitted that since the two burglaries were wholly distinct and separate, a consecutive sentence was appropriate.

Discussion

21.For the first ground of appeal, it is worth quoting precisely what the judge said of the aggravating factors present in the applicant’s offences:[3]

“7. In the present case, there are aggravating circumstances. In the 1st count, at the time of the offence, the defendant was on bail for a different offence (KC 3125/16). In respect of the 2nd count, the offence was committed within the same month the defendant was released from prison. This court also noticed that the defendant had 32 convictions. He committed a burglary in 2014. There were a total of 15 counts involving dishonesty.

8. Under the circumstances, I consider that the court ought to adopt a slightly higher starting point for both counts to reflect the aggravating factors in this case...”

22.I am not persuaded that it is reasonably arguable that there has been any double counting in respect of Charge 2 in the sense that Mr Hung asserts.  That is, in assessing the amount of enhancement appropriate for Charge 2 the judge has had regard to both the fact that the offence was committed within the same month of his release from prison for another offence and the fact that he is a persistent offender as though they were separate aggravating factors.  The judge’s language does not suggest that.

23.I do not consider the second ground of appeal reasonably arguable. The amount of the enhancement is primarily determined by the nature of the aggravating factor but that is not to say that the nature of the offence and the starting point adopted for it, are not an important part of the context.  Clearly, they are.  However, I do not see in the present case any indication that the judge did not have regard to the fact that the offences whose sentences he was enhancing were both burglaries, and were different kinds of burglaries for which he had adopted different starting points.

24.In respect of the third ground of appeal it is necessary to bear in mind that for Charge 1 there were two aggravating factors, the commission of the offence whilst on bail for another offence and the applicant’s criminal record, whilst for Charge 2 there was only one aggravating factor, that being the applicant’s criminal record.  The enhancement of 6 months for committing the first charge to reflect the two aggravating factors present is, in my view, within the appropriate range of enhancement and it is not reasonably arguable that it is excessive.  However, that being so it would suggest that the enhancement of 6 months for the sole aggravating factor of being a persistent offender, must be excessive.  In order to determine what might be an appropriate enhancement for this applicant’s criminal record it is necessary to closely examine it.

25.The applicant has been in trouble since he was aged 18.  Up until he turned 24 his offending almost entirely concerned the use of drugs.  His first offence of dishonesty was for theft and this was in 1998 when he would have been 23 years of age.  He continued to abuse drugs and started to appear regularly before the courts for theft offences.  These theft offences must have been relatively minor as they attracted sentences of only 3 or 4 months’ imprisonment.  I would not be surprised if the theft and drug offences were connected in the sense that the former funded the latter.

26.The applicant’s first major offence was burglary for which he was sentenced on 17 January 2014 to 18 months’ imprisonment (Item 31 on his criminal record).  His next offending after release from prison for this burglary sentence were a set of offences of which the earlier mentioned theft from vehicle[4] was one.   

27.The applicant’s criminal record is appalling in terms of the frequency of offending and the number of offences.  Until he turned to burglary, however, his offences appear to have been of a low level in terms of their seriousness and may have been drug connected.  I note that in respect of two shoplifting theft offences in 2005 he was in fact sentenced to Drug Addiction Treatment Centre.

28.Although it can be said with some confidence from this criminal record that the applicant has no regard for the property rights of others, it cannot confidently be said that he is a professional burglar or destined to be a repeat offender when it comes to burglary.  The enhancement, being for the offence of burglary, is intended to deter him not just from further offending but specifically from committing further burglary offences.  In my view it is reasonably arguable that the enhancement of 6 months adopted by the judge in respect of Charge 2 is excessive. 

29.The fourth ground of appeal complains about the totality.  The totality was reached by adding 12 months of the sentence for Charge 2 to the enhanced sentence for Charge 1.  Given that the applicant had never received sentences of these lengths before the current total sentence of 40 months’ imprisonment would no doubt have come as quite a shock to him.  But, arguably, that may be precisely what this applicant needs to make him realise that if his offending progresses to a more serious level then his sentence for that offending will be longer than that to which he was previously accustomed. There is, apart from the principle of deterrence, also the sentencing consideration of protecting the community from the depredations of the applicant.

30.Mr Hung’s submission approaches the total sentence in this way.  He adds up the two enhanced starting points adopted by the judge.  This equals 78 months’ imprisonment.  He then stands back and assesses whether, for the applicant’s overall culpability a sentence of this length (6½ years) is just.  He says, clearly not and he suggests that a total sentence of 54 months, having regard to all the circumstances, would meet the justice of the case.  His suggestion is effectively borne from his experience and intuition as a criminal practitioner.  If 54 months is discounted by one-third to allow for the applicant’s plea of guilty then the final sentence becomes 36 months; 4 months less than the sentence imposed by the judge. 

31.By this means Mr Hung seeks to show that, notwithstanding that no error by the judge can be identified, the total sentence is, nevertheless, excessive.

32.After giving Mr Hung’s argument careful thought I am persuaded that the fourth ground of appeal is reasonably arguable, but I put it no higher than that.

33.The fifth ground of appeal relies on the merits of the 1^st to 4^th grounds of appeal.  Having found the third and fourth grounds of appeal reasonably arguable, it follows that I find the fifth ground of appeal is also reasonably arguable. 

Conclusion

34.For these reasons I granted the applicant leave to appeal in respect of his third ground of appeal, in so far as it relates to Charge 2, and his fourth and fifth grounds of appeal.

Mr Franco Kuan SPP, of the Department of Justice, for the respondent

Mr Andy Hung, instructed by DLA, for the applicant

[1] This case was KCCC 3125/16 and on 13 October 2016 the applicant was sentenced to 3 months’ imprisonment for it.  On that same date, he was also sentenced for two other offences (including a charge of theft) resulting in another consecutive sentence of 3 months’ imprisonment imposed on him.  He was released in February 2017.

[2] [2017] 1 HKLRD 400

[3] Reasons for Sentence, paragraphs 7-8.

[4] See paragraph 11 and footnote 1 of this judgment.