HKSAR v. Leung Chi Wai

CACC 357/2017

[2018] HKCA 624

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 357 OF 2017

(ON APPEAL FROM DCCC NOS 408 & 588/2017)

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REASONS FOR JUDGMENT

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Hon McWalters JA (giving the Reasons for Judgment of the court):

1.The appellant appeared in the District Court on a consolidated Charge Sheet containing two charges of burglary^[1], contrary to section 11(1)(b) and (4) of the Theft Ordinance, Cap 210 (Charge 1) and contrary to section 11(1)(a) and (4) of the same Ordinance (Charge 2). On 26 October 2017 the appellant was convicted upon his guilty pleas and sentenced by Deputy District Judge Ernest Lin (“the judge”) to a total term of 40 months’ imprisonment.

2.He applied for leave to appeal his sentence and this was granted[2] on 30 May 2018, but only in respect of the 3^rd to 5^th grounds of appeal in his Perfected Grounds of Appeal.

3.At the hearing of the appeal we dismissed it and said we would hand down our reasons for doing so at a later date.  These are our reasons.

The Summary of Facts

4.The Summary of Facts which the appellant admitted for the purpose of his sentencing revealed that Charge 1 concerned a domestic burglary and Charge 2 a non‑domestic burglary.

5.In respect of Charge 1, the burgled premises were a storage hut, also used as a place of residence, situated at the Rooftop, No 58 Lai Chi Kok Road, Mongkok.  On 8 October 2016, at about 9:15 am, the occupier returned to this hut and found that it had been ransacked.  In particular, a television, 4 tablets of Chinese medicine and one power drill were missing.  These items had a total value of $6,800.  A fingerprint was lifted from a metal box inside the storage hut and it was found to match the ring fingerprint of the appellant. 

6.For Charge 2, the burgled premises was a shop situated at No 175 Apliu Street, Sham Shui Po.  On 26 February 2017, at about 11:20 pm, while conducting a patrol at this location, police officers saw a male person whom they later identified as the appellant, on the top of an iron gate of the shop which was then under renovation.  When questioned, he admitted having stolen a silver password number lock valued at $20.  When arrested and cautioned, he admitted going into the shop to steal some construction tools because he was penniless.  In a subsequent video record of interview, he confirmed his earlier admission and said that after unlocking the door to the shop he heard police officers coming.  He tried to escape, but was arrested after jumping to the ground from a mezzanine floor window. 

The mitigation advanced on behalf of the appellant

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

8.It was not disputed that the appellant had 25 court appearances involving 38 charges, 24 of which are theft-related offences or involve dishonesty.  They occurred between 1993, when the appellant would have been 18 years of age, and 2016.  The dishonesty offences are set out in the following table:

Date of sentence	Offence	Sentence
15.5.1996	Assault with intent to rob	Drug Addiction Treatment Centre (“DATC”)
30.9.1998	Theft	2 months’ imprisonment suspended for 12 months and fine of $500
17.1.2000	Theft	1 month’s imprisonment
17.1.2000	Theft	1 month’s imprisonment
22.8.2000	Theft	Probation Order
11.5.2001	Theft	28 days’ imprisonment
4.10.2001	Theft	3 months’ imprisonment
11.7.2003	Theft	4 months’ imprisonment suspended for 18 months and fine of $500
9.10.2003	Theft	4 months’ imprisonment
29.5.2004	Theft	2 months’ imprisonment
23.10.2004	Theft	2 months’ imprisonment
23.10.2004	Theft	3 months’ imprisonment
13.10.2005	Theft (Shoplifting)	DATC
13.10.2005	Theft (Shoplifting)	DATC
12.4.2006	Theft (Shoplifting)	4 months’ imprisonment
8.11.2007	Theft	6 months’ imprisonment
29.10.2008	Theft	3 months’ imprisonment
4.1.2010	Attempted theft (2 charges) and theft (2 charges)	4 months imprisonment (total)
7.1.2014	Burglary	18 months’ imprisonment
13.10.2016	Theft from vehicle (KCCC 3125/2016)	3 months’ imprisonment
13.10.2016	Theft	3 months’ imprisonment

The other offences are primarily drug use offences and some assaults.

9.His counsel urged the judge to show leniency as the appellant carried no weapons or tools, he had checked the first premises were unoccupied before entering them, he stole property of only little value and had fully cooperated with the police.  His counsel urged the judge to adopt starting points of 3 years’ imprisonment for the domestic burglary, and 30 months’ imprisonment for the non-domestic burglary and to order only partially consecutive sentences.  His counsel also tendered a letter of remorse from the appellant and a letter from his employer. 

The judge’s Reasons for Sentence

10.In his Reasons for Sentence the judge stipulated starting points for the domestic burglary in Charge 1 and the non-domestic burglary in Charge 2 of 36 months’ imprisonment and 30 months’ imprisonment respectively.

11.The judge then identified the following features as aggravating circumstances for the purpose of sentencing the appellant:

(i)   the appellant committed the offence in Charge 1 whilst he was on bail in respect of a “theft from vehicle” offence (KCCC 3125/2016; the second last item in the table above)[3];

(ii)   he committed the offence in Charge 2 in February 2017, the very same month of his release from prison for the “theft from vehicle” offence; and

(iii)   the appellant had a total of some 32 previous convictions of which one, in 2014, was for burglary, and many others were for offences involving dishonesty.

He said of these aggravating circumstances:[4]

“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...”

12.The judge enhanced the starting points for Charge 1 and Charge 2 equally by 6 months to 42 months’ and 36 months’ imprisonment respectively.  Giving the appellant a one-third discount for his pleas of guilty, the judge reduced these enhanced starting points to 28 months’ and 24 months’ imprisonment respectively.  The judge then ordered that 12 months of Charge 2 was to run consecutively to the sentence for Charge 1, resulting in a total sentence of 40 months’ imprisonment.

The Perfected Grounds of Appeal

13.In this appeal, Mr Andy Hung, counsel for the appellant, pursued only Grounds 3 to 5 of his Perfected Grounds of Appeal in respect of which he had been given leave to appeal.  Ground 3 is that the enhancement of 6 months for Charge 2 is too high.  Mr Hung argued that for Charge 1 there were present two aggravating factors, namely commission of the offence whilst on bail and the appellant’s criminal record.  However, for Charge 2 there was only one, namely the appellant’s criminal record.  Consequently, if 6 months was the appropriate enhancement for the presence of two aggravating factors then it must logically follow, so he argued, that the enhancement for Charge 2, where there was present only one aggravating factor, is excessive.

14.Ground 4 is that the judge erred in not properly and/or adequately applying the totality principle when he stipulated too high an overall notional starting point, for both charges, of 60 months’ imprisonment.  Mr Hung submitted that the overall culpability of the appellant did not warrant it.  Mr Hung argued that a notional starting point of 54 months’ imprisonment (or a sentence of 36 months’ imprisonment) was just.  This ground leads on to Ground 5 which is that, in all the circumstances, the overall sentence of 40 months’ imprisonment is manifestly excessive.

The respondent’s submissions

15.Mr Franco Kuan, Senior Public Prosecutor, for the respondent, submitted that the complaint in Ground 3 had to be considered in the light of the fact that there was an inadequate enhancement for Charge 1 in the first place.  Mr Kuan submitted that, whilst a 6-month enhancement in sentence for committing an offence whilst on bail could not be impugned, the commission of an offence immediately after one’s release from prison was a separate and additional aggravating factor applicable to Charge 2 which should call for a further enhancement of at least a few months.  In support of this argument he relied on the judgment of the Court of Appeal in HKSAR v Poon Yiu Fai[5]. Mr Kuan further submitted that there could be no complaint against the totality of the notional starting points for each charge or the overall sentence.

Discussion

16.In relation to the third and fourth grounds of appeal, Mr Hung relied on a number of case authorities to support his grounds of appeal.

17.In support of his ground 3 he referred to cases where lower enhancement periods had been ordered for appellants who had prior criminal convictions for burglary.  These cases were HKSAR v Yeung Ka Kit Jonathan[6] where the Court of Appeal reduced an enhancement of 4 months’ imprisonment, and HKSAR v Lau Hak Kan[7]wherethe applicant had 13 dishonesty-related previous convictions, including 6 charges of burglary or attempted burglary and had suffered an enhancement of only 3 months by the sentencing judge. 

18.That some enhancement was justified for this appellant is unarguable.  Mr Hung submitted that it should be less than 6 months.  However, there are no inflexible rules on what the level of enhancement should be for the aggravating factors that are present in respect of this appellant.  The case law does not demonstrate a particular pattern of sentencing practice, for enhancement for these aggravating factors, that has been employed by the trial courts or approved by the appellate courts.  The amount of enhancement will always be case sensitive and involve the judge exercising his sentencing discretion in respect of the particular offender before him.  But, if the enhancement is too little then it loses its deterrent effect, which is the primary reason it is imposed. 

19.Determining the amount of enhancement is not a question of simply adding up the number of aggravating factors; rather it is evaluating what these aggravating factors reveal to the sentencing judge about a particular offender.  The criminal record history of this appellant reveals that he has no respect for the property rights of others and will turn to crime without a moment’s hesitation whenever he is in need of money.  There is not only a need to inject into his sentence a considerable element of deterrence, there is also a need for his sentence to reflect a clear and strong denunciation of his conduct and finally for the sentence to protect the community from his further depredations.

20.There is no illogicality between the enhancements for Charges 1 and 2.  The enhancement for Charge 1 reflected the presence of two aggravating factors.  The enhancement for Charge 2 may have reflected only one aggravating factor, namely the criminal record of the appellant, but by Charge 2 that criminal record was different.  It had become a more serious criminal record by the commission of Charge 2 in circumstances, namely shortly after the appellant’s release from prison, that demonstrated a complete indifference both to the law and to the community in which he lives.  

21.In our view six months enhancement for this appellant, for these aggravating factors, is, if anything, generously fair; it is certainly not excessive.  We find no merit in the third ground of appeal.

22.In respect of totality we accept that the burglaries involve property of little value.  But, in respect of the first offence that is because the premises burgled were a simple rooftop home occupied by a person of humble circumstances and in respect of the second offence because the appellant was interrupted in the course of committing the offence.  We do not see that either of these features lessens the culpability of the appellant.

23.The two offences were quite separate and so the judge was perfectly entitled to order consecutive sentences.  He was aware that before making such an order he had to apply the totality principle.  Mr Hung argued that in doing so the sentence he imposed was excessive by four months and invited us to reduce the sentence by this amount.  Such an argument bears all the hallmarks of an invitation to this court to tinker with the sentence and replace the sentence with one which Mr Hung seeks to persuade us we should impose. This is not the role of the Court of Appeal.  The appellant must show that in some way the judge erred in his decision to impose the sentence he did, thereby resulting in an excessive sentence.  No such error has been demonstrated to us.

24.Mr Hung referred to a number of judgments of the Court of Appeal involving multiple burglaries to illustrate how the totality principle has been applied.  However, as he conceded in his written submission:

“It is hard to pinpoint a precise formula for the application of totality principle. The application of the principle very much depends on the facts of the case.”

We agree and do not find the cases to which he referred us of any assistance in determining whether the overall sentence imposed on the appellant is excessive.

25.Notwithstanding that Mr Hung is unable to point to any error in the application of the totality principle we have stood back and considered whether the sentence is so clearly excessive that it can be said that, notwithstanding that no error is apparent from the judge’s Reasons for Sentence, the judge’s sentencing discretion must have miscarried. 

26.In determining this question we bear in mind the role of the totality principle.  In HKSAR v Ngai Yiu Ching Stock VP, as Stock NPJ then was, said[8]:

“22. The importance of the totality principle cannot be overstated. It is there to ensure not only fairness to the offender, in the sense that he is not punished twice for the same offence and, further, that the sentence is not an unduly crushing punishment, but it is also a tool by which to ensure that ‘the overall effect of the sentences is sufficient having regard to the usual principles of deterrence, rehabilitation and denunciation.’: R v KM [2004] NSWCCA 65 at para.55.”

27.That the totality principle exists not just to benefit an offender but to advance the wider interests of justice, so that the sentence imposed is a just and balanced sentence, was emphasized by the Court of Appeal in HKSAR v Lam See Chung Stephen.  The comments of the court are particularly apposite to the circumstances of this appellant and merit repeating[9]:

“51. The purpose of the totality principle is to achieve a just and balanced sentence that will not punish the defendant twice for the same conduct and will not be crushing to him. It is clear that a just and balanced sentence is one that is not concerned solely with the rehabilitation needs of the offender but also accommodates other relevant sentencing principles, such as retribution, that is, the need to punish an offender for his misdeeds; where deterrence is needed in respect of a particular offender or offence, to appropriately deter him and others; the need to denounce the conduct and, where an offender preys upon the community, to protect it from his depredations.¹⁰It is well to remember that at times a severe sentence will be an appropriate sentencing response and just because a sentence is severe does not mean that it is not just and balanced.”

28.In the particular circumstances of this appellant, where the overall sentence has to accommodate the sentencing principles of deterrence, denunciation and protecting the community, we were not persuaded that there is any excessiveness in the totality imposed on this appellant.

Conclusion

29.For these reasons we dismissed the appeal.

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

Mr Andy HS Hung, instructed by DLA, for the appellant