HKSAR v. Cheung Wing Kin

CACC 71/2024 [2024] HKCA 1023

On appeal from [2024] HKDC 398

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 71 OF 2024

(ON APPEAL FROM DCCC NO 546 OF 2023)

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REASONS FOR JUDGMENT

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1.The applicant was charged with two offences of burglary, contrary to section 11(1)(b) and (4) of the Theft Ordinance (Cap 210) (Charges 1 and 2). On 7 March 2024, he pleaded guilty before Deputy District Court Judge KH Cheang (the judge) and was sentenced to 3 years and 3 months’ imprisonment. He applied for leave to appeal against sentence.

The admitted facts

2.The facts outlined to the judge and admitted by the applicant were as follows.[1]

3.The two burglary offences were committed on 15 May 2022 and 30 November 2022, respectively.  The offences were committed in the same building, Ping Chun House in Kwun Tong, Kowloon, where the applicant lived, but in respect of different premises on different floors.

Charge 1

4.At the material time, Madam Wang Yu Feng (PW1) resided alone at Room 701 in the building (Room 701).  At around 12 noon on 15 May 2022, PW1 left her room and returned at about 00:50 am the next day.  She found that her premises had been ransacked and the following items were missing: approximately HK$800 cash and two ornaments each worth around HK$150.

Charge 2

5.At the material time, Madam Bai Cihua (PW2) resided alone at Room 1511 in the building (Room 1511).

6.At around 5:50 pm on 30 November 2022, PW2 left her room.  She locked the metal gate but left the wooden door slightly ajar.  At around 7:00 pm that day, she returned to her room and found her mobile telephone and a wooden drawer with the following items were missing: HK$180,000 cash; RMB300 cash; two gold rings each worth approximately HK$3,500; one platinum necklace worth approximately HK$3,000; one gold necklace worth approximately HK$2,500; one pair of gold earrings worth approximately HK$1,500; and PW2’s personal belongings and documents, such as a bank passbook, Octopus Cards, receipts, and membership cards etc.

8.On 1 December 2022, police officers raided the applicant’s residence at Room 416 in the building (Room 416) and found the following items: PW2’s mobile telephone and her personal belongs, such as a bank passbook and Octopus cards in the applicant’s brother’s bedroom; and cash in the sum of HK$20,055 and RMB172.30, one gold ring; two necklaces and one pair of gold earrings belonging to PW2 in a safe underneath the applicant’s bed.

9.The applicant was arrested and under caution he admitted using a chopper to prize open the drawer in Room 1511 and stealing the gold ornaments inside.  He said he had no money.  He also admitted that he burgled Room 701 in May 2022 and stole cash of about HK$1,000.

10.On 1 and 2 December 2022, the applicant participated in three video recorded interviews.  In summary, he provided details of how he committed the burglaries at Room 701 and Room 1511.  He explained how he checked the residences in the building for possible targets to burgle, and that was what led him to burgle these two rooms.  He revealed how he carried out the burglaries and admitted to the property that he stole.  He also explained where he stored the stolen property and what he did with some of the stolen cash and property.

The applicant’s background

11.The applicant at the time of the offences was 34 years old.  He was educated up to Form 3 level.  He was previously employed as a warehouse worker, earning a monthly salary of about HK$18,000.  He is married but separated from his wife in 2021. 

12.The applicant had eight previous convictions[2],including three for theft for which he was sentenced by way of a fine in December 2008, 1 month’s imprisonment in December 2013 (which was consecutive to the sentence for burglary) and 4 months’ imprisonment March 2015; and two for burglary, for which he was sentenced to 20 months’ imprisonment in December 2013 and 22 months’ imprisonment in September 2015.

Mitigation

13.It was submitted on behalf of the applicant that the usual starting point for a single burglary of residential premises committed by a first time offender of full age, where there were no mitigating factors, was 3 years’ imprisonment.[3] However, it was contended that a relevant factor to be taken into account when passing sentence on the applicant was his mental condition.  The applicant suffered from schizophrenia since 2011 and it was claimed that at the material times he would hear voices telling him to commit the burglaries.  A brief medical report was produced stating that the applicant had been diagnosed to have schizophrenia and that he was receiving regular treatment, having been prescribed with psychotropic medications.  It was also stated that his mental condition was stable and that he was mentally fit. 

14.It was pointed out that the applicant fully cooperated with the police after his arrest.  All the evidence against him in respect of Charge 1 came from his own admissions.  It was claimed that he committed the offences in an attempt to pay off his debts from gambling. 

15.It was further submitted that he acted alone and the offences were not carefully planned or skilfully executed.  He used no tools in committing the burglary at Room 701.  He did not bring any tools to commit the burglary at Room 1511, although he used the chopper and the peeler found in Room 1511 to prize open the drawer.  The burglaries were committed during the daytime when no one was in the premises, and no one was put in fear.

The reasons for sentence

16.The judge gave comprehensive reasons for sentence in which he set out a summary of the facts and an analysis of the issues.[4] He applied a starting point of 3 years’ imprisonment for domestic burglary.

17.On the question of the applicant’s mental state at the time of the offences, the judge noted that the medical report indicated that he had been receiving treatment and his mental condition was characterised as stable.  He noted that the applicant elected not to hold a Newton inquiry to substantiate that he was suffering from an abnormal state of mind at the time of the offences.  The judge considered that the admissions made by the applicant during the interviews showed that he planned and calculated the burglaries and did not commit the offences under an abnormal state of mind.

18.As for Charge 1, the judge adopted a starting point of 3 years’ imprisonment, which he enhanced by 3 months for the applicant’s previous similar convictions.  Of this charge, the judge accepted that without the applicant’s admissions, the prosecution might not have had sufficient evidence to prosecute him for this offence.  The sentence was therefore reduced by 3 months.  The notional starting point of 3 years’ imprisonment was reduced by one third for the applicant’s guilty plea, to 2 years’ imprisonment.

19.As for Charge 2, the judge also adopted a starting point of 3 years’ imprisonment, which he enhanced by 6 months for the following factors: the applicant had previous convictions for burglary prior to this case, the applicant had committed two offences in this case, and the value of the stolen property was substantial, most of which could not be recovered.  The notional starting point of 3 years and 6 months’ imprisonment was reduced by one third for the applicant’s guilty plea to 2 years and 4 months’ imprisonment. 

20.The judge ordered that 15 months of Charge 2 to run consecutively with the sentence of 2 years’ imprisonment on Charge 1, which resulted in a total sentence of 3 years and 3 months’ imprisonment.

The grounds of appeal

21.The applicant did not raise any grounds of appeal in his leave application.  At the leave hearing, he complained that the consecutive element of 15 months of the sentence on Charge 2 to the sentence of 2 years’ imprisonment on Charge 1 was too high.  He also complained that he was under pressure because of the treatment he received from prison inmates when he was last in prison but as indicated to him this had not been mentioned in mitigation before the judge and did not provide any legitimate ground of appeal against his sentence. 

Discussion

22.The respondent submitted that after a careful consideration of the relevant sentencing authorities and the facts and circumstances of each of the offences together with the applicant’s previous criminal history, the sentence imposed by the judge was neither wrong in principle nor manifestly excessive. 

23.As noted by the respondent, the usual sentencing guideline for burglary involving domestic premises is 3 years’ imprisonment.  However, as pointed out by the Court of Appeal in HKSAR v Cheng Wai Kai[5], the starting point can be adjusted upwards if there are aggravating circumstances such as: (1) the offence is carefully planned and skilfully executed involving the use of heavy instrument or equipment; (2) the offence is committed by two or more people; (3) the offence targets at substantial premises and involves substantial properties; (4) the offender is a professional burglar and not just an opportunist; (5) the offender has previous convictions, particularly previous convictions of similar nature, and (6) the offender commits multiple offences.  The Court added that if the offences were committed in different premises against different victims on different dates, consecutive sentences should be imposed.[6]

24.As submitted by the respondent, the applicant was not an opportunistic burglar and that his conduct involved a degree of planning.  This was illustrated by the applicant using his knowledge of the building to look for target premises and avoiding being captured on the CCTV in the lift by taking the staircase to check premises.  He also carefully hid the stolen property in his home so as to avoid being caught.  It is also noted that the premises he burgled were occupied by elderly lone women (PW1 was 75 and PW2 was 80), who fortunately were not in the premises or returned to the premises when he was committing the burglaries.

25.The respondent also noted that the applicant committed two burglaries some months apart from each other.  The value of stolen properties in the second offence was substantial, most of which had not been recovered.  Furthermore, the applicant was a repeat offender with two previous convictions for burglary and three for theft. It was submitted that in light of the aggravating factors, the judge was entitled to enhance the starting point by 6 months to reflect the applicant’s criminality.  The judge mentioned the applicant’s previous convictions for burglary when enhancing the notional starting point on Charges 1 and 2, and it may be viewed that he was double counting.  However, the enhancement of 6 months to the notional starting point for Charge 2 was justified for the following factors: (i) the burglary in Charge 2 was committed 6 months after the burglary in Charge 1 and was therefore repeat offending of the same nature; and (ii) the offending in Charge 2 was more serious and involved the applicant stealing substantial property.

26.The judge made 15 months of the sentence on Charge 2 consecutive to the sentence of 2 years’ imprisonment on Charge 1.  Charge 2 was the second in time, involving serious offending, where substantial cash and property was stolen, some of which was not recovered.  The judge took into account the totality principle and considered that the overall offending in respect of the two offences, and the applicant’s previous criminal history for offending of this type of offence, was appropriately reflected with a sentence of 3 years and 3 months’ imprisonment.  In these circumstances, the consecutive element was justified and it cannot be said that it was manifestly excessive.

Conclusion

27.I am not satisfied that the applicant has reasonably arguable grounds of appeal against sentence in this case.  He targeted premises in the building in which he lived, carefully checking and planning which premises he could burgle.  It was a case where premeditation and planning was involved.  There is the additional serious factor that he was a repeat offender, who committed two burglaries, six months apart, in this case.  As I have explained, I do not consider the consecutive element of 15 months to be wrong in principle or manifestly excessive.  It was high, but justified.

28.The application for leave to appeal against sentence is refused.  Nevertheless, the applicant is reminded of his right to renew his application for leave to the Court of Appeal, but he is also informed of the consequences of doing so, 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 his application.

Ms Lisa Go, SPP, of Department of Justice, for the respondent

The applicant appeared in person

[1]   Appeal Bundle (AB), 5-12.

[2]   AB, 40-42.

[3]   AB, 29-39.

[4]   AB, 13-28.

[5]   HKSAR v Cheng Wai Kai, CACC 338/2007, 11 June 2008, at [15].

[6]   Cheng Wai Kai, at [16].