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DCCC 420/2024
[2025] HKDC 385
香港特別行政區
區域法院
刑事案件2024年第420號
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| 出席人士: |
梅松先生，為外聘大律師，代表香港特別行政區 |
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詹俊祺先生，由法律援助署委派的林文傑律師事務所延聘，代表被告人 |
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判刑理由書
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1.被告人承認一項「入屋犯法」罪，違反香港法例第 210 章《盜竊罪條例》第 11(1)(b) 及 (4) 條。
案情撮要
2.被告人承認的經修訂案情撮要內容如下：
(1) 2023 年 11 月 20 日約 1745 時，何氏會計事務有限公司主管呂錦華先生（控方第一證人）鎖好門窗，離開位於九龍旺角登打士街 43H號登打士廣場 15 樓的辦公室（辦公室）。但是辦公室茶水間內一道窗戶損壞，不能鎖上（該窗戶）。
(2) 2023 年11 月 21 日約 0830 時，控方第一證人返回辦公室，發現辦公室曾被搜掠，現金人民幣 20,000 元、約 10 本銀行支票簿、3 本銀行存摺及兩條手鏈（估計價值：港幣 2,000 元）不見了；還有一個櫃門損壞（估計維修費：港幣 1,000 元）。
(3) 閉路電視拍攝到一名男子戴着口罩，身穿連帽衫、短褲及運動鞋， 2023 年 11 月 21 日約 0553 時經該窗戶進入辦公室，約 0618 時搜掠辦公室。在片段中可見該名男子左右小腿上各有一個紋身，形狀與被告人左右小腿上發現的紋身吻合。
拘捕及警誡
(4) 2023 年 11 月 21 日約 1646 時，被告人在旺角被截停和拘捕。
(5) 被告人在警誡下保持緘默。
(6) 警方沒有搜屋。被盜財物未能尋回。
控罪基礎
(7) 被告人作為侵入者，於2023 年 11 月 21 日進入該辦公室偷竊上述第2段中的財物。
被告人的背景
3.被告人現年 50 歲，未婚，與前女友育有一名未成年的女兒。案發時被告人獨居，無業。被告人過往有共 27 項刑事定罪紀錄，涉及 41 項控罪，17 項涉及不誠實行為，其中 4 項為「入屋犯法」，其餘的包括 3 項「搶劫」、一項「企圖搶劫」、一項「企圖妨礙司法公正」、一項「串謀盜竊」、一項「偷電」、兩項「處理贓物」、兩 項「外出時攜有盜竊工具」、一項「未獲授權而取用運輸工具」及一項「車內盜竊」。最新近的 3 次「入屋犯法」定罪分別為 2019、2021 及 2022 年。他於 2023 年 6 月 13 日就「入屋犯法」獲䆁，但隨即又於 2023 年 8 月 11 日就「車內盜竊」被定罪。最後獲釋日期為10月3日。
判刑原則
4.「入屋犯法」是嚴重罪行，最高刑期為14年監禁。上級法庭已就「入屋犯法」罪訂明量刑指引，涉及商業處所的「爆竊」，適當的量刑起點為 30 個月監禁：R v Wong Man [1993] 1 HKC 80; Secretary for Justice v Tsang Hon-yin [2004] HKCU 1497 (CAAR 5/2004, 2004 年 12 月 16 日，未經彙編）。可是該量刑起點只適用於初犯者及沒有其他加刑或減刑因素的案件：HKSAR v Chan Kong-yiu [2011] 4 HKLRD 291。被告人有類同前科及剛出獄便再犯案均為加刑因素。
5.於 HKSAR v Cheung Wai Kai CACC 338/2007，上訴法庭指：
「14. 爆竊非住宅單位的一般適當量刑基準是30 個月監禁 …
15. 該量刑基準可因應不同加重罪責的因素而向上調高，包括：
(i) 案件是精心部署及熟練地執行，並涉及使用重型工具或器材；
(ii) 案件是由兩名或以上的人干犯；
(iii) 罪行以價值可觀的處所和財物作為目標；
(iv) 犯案人並非只是隨機行事，而是職業爆竊犯；
(v) 犯案人已有定罪紀錄（尤其是相同性質的定罪紀錄）；及
(vi) 犯案人同時干犯多項控罪。」
討論
6.大律師指案發前，被告人在同一大廈 16 樓的酒吧與朋友飲酒；他於梯間吸煙時發現該窗戶打開，一時貪念下干犯本案。被告人沒有使用任何工具強行進入涉案的單位，也沒有使用任何衣物遮掩下肢的紋身。大律師希望法庭接納被告人並非早有預謀犯案。本案是一宗簡單的爆竊，不涉及精密部署，被告人亦只是單獨行事，沒有使用重型工具，受害人亦未有蒙受重大的財物損失。
7.大律師承認，被告人是類同控罪的積犯是加刑因素。可是大律師指加刑並非必然，一切視乎案情及法庭的取態。部份案件顯示，即使屬多次干犯同類案件的積犯，其人似無教化之可能，法庭亦不一定加刑。大律師承認，案件各自必然有獨特之處，純粹將最終的裁斷結果作比較，也許不一定具有特別的意義。他指以「入屋犯法」而言，對積犯加刑的幅度一般介乎 3 至 6 個月。大律師以列表羅列案例的有關資料，不贅。
8.另外，大律師援引 HKSAR v Tsang Leung Kwan & Another CACC 368/2002 指，雖然該案的第一被告人是第四次干犯爆竊罪及在獲釋不久後犯案，而案件亦屬精良策劃及與他人夥同犯案，但原審法官將量刑基準由 30 個月調高至 4 年，實屬明顯過重，故下令將量刑基準下調至 39 個月。大律師指本案並非精良策劃，雖然被告是積犯及剛出獄後不久便再犯案，希望法庭酌情加刑六個月，或是盡量輕判及給予被告人認罪的三份一折扣。
9.本席不同意被告人是看見該窗戶打開才犯案。該說法與他承認的事實不吻合，來辯方撤回該說法。根據案情撮要第 1 段，控方第一證人是鎖好門窗後才離開辦公室；雖然該窗戶損壞，只是不能鎖上。
10.沒有爭議的是，被告人是「入屋犯法」的積犯。對職業竊匪及慣犯，法庭需處以阻嚇性刑罰。
11.於HKSAR v Cheng Chi Shing [2001] HKCU 300, 上訴法庭指：
“In the argument for the respondent, Mr Law referred to HKSAR v Chan Pui Chi, (1999) 2 HKLRD 830 where Stuart-Moore VP said at p.833:-
Whilst it is always important for the sentencer to bear in mind the general principle that a defendant is being sentenced for the offence which has brought him before the court and not for previous offences for which he has already served the penalty, the constant repetition of this applicant's trafficking in dangerous drugs had itself increased the gravity of these offences, at least so far as sentence is concerned. The sentences he had received in the past had proved to be no deterrent at all, and prevention of further repetition was demonstrably in the public interest.
We should add that there is nothing original about the notion that a defendant, with previous convictions of the same or a similar kind as the offence for which he is due to be sentenced, may receive a longer sentence than a defendant with none. If it were otherwise, the man of good character standing next to the recidivist in the dock on a joint charge, with equal culpability for the crime, would plainly have to be sentenced to the same terms of imprisonment subject probably to a small reduction in the case of the former to take account of his good character.
The judgment went on to look at examples where offences are aggravated, for the purposes of sentence, by repetition before Stuart-Moore VP said:-
There are many examples of this kind to be made, and trafficking in dangerous drugs is certainly no exception, if indeed there are any exceptions, to the general rule that re-offending in the same or similar way may aggravate the offence, at least so far as sentence is concerned. This will have the result that the starting point which would have been adopted for a man of good character will sometimes need to be increased to take into account the aggravating features of persistence and the failure of previous sentences to deter on the one hand, and the court's duty to protect the public on the other. The court, in other words, is passing a deterrent sentence on the persistent offender, from whom the public needs protection, which is often unnecessary on a first or even sometimes a second-time offender. Much may depend on the gravity of the crime. The graver the crime, the more obvious becomes the need for a deterrent sentence on repetition in order that the public are properly protected.
In the matter before us, the judge properly took into account that the gravity of the offence was increased, so far as the applicant's sentence was concerned, by the fact that he had four previous convictions of burglary. We are satisfied that the judge was not in error in finding three years and four months to be an appropriate starting point. We are satisfied that the sentence is neither manifestly excessive nor wrong in principle.”
12.於 HKSAR v Chan Kwong Chun [2009] HKCU 345，被告人於一個商業處所爆竊時被拘捕。他承認控罪。被告人有 11 次「爆竊」及 2 次「外出時備有偷竊用的物品」的刑事定罪紀錄。原審法官認為被告人是一名職業爆竊者，以 3 年半監禁作為量刑基準，考慮到被告人認罪及其他求情因素後，判處被告人 28 個月監禁。被告人不服判刑，提出上訴。上訴法庭指：
“5. There is no doubt that the judge in this case was entitled to increase the starting point. The applicant had a very bad record. He had been convicted of 11 burglaries and two for going equipped for theft. On 11 occasions he had been sentenced to imprisonment for terms ranging from 8 months to 3 years.
6. here is no arithmetic formula for the enhancement of sentences. It is a matter of judgment for the sentencing judge. On this occasion it is plain that the judge considered the applicant to be a professional burglar who was a menace to society. We think he was perfectly entitled to come to this view and make a meaningful increase in the starting point as a deterrent. An increase of 12 months in all the circumstances was perfectly reasonable.”
13.於 HKSAR v Fan Kit Hung（范傑雄）[2009] 6 HKC 314，上訴法庭指：
“We have been referred to a large number of cases involving multiple burglaries of non-domestic premises commencing with Secretary for Justice v Chan Tsz Lung [1998] 4 HKC 496, CAAR 4/1998 …, which involved 15 charges of burglary and one charge of possession of an offensive weapon. This court (differently constituted) allowed the application for review and in doing so approved, in respect of the burglary offences, a notional starting point of 5 years’ imprisonment reduced, because of the pleas, to a totality of 46 months’ imprisonment (increased by a further 6 months for the weapons offence).
However, as we understand that decision, the court in Chan Tsz Lung was not purporting to place an upper limit on the totality of sentence for multiple burglary offences. That quite simply could not be so given the variation in circumstances and aggravating factors possible.
In subsequent cases involving multiple offences of burglary of non-domestic premises, which raised questions concerning the appropriate totality of sentence, similar or even higher notional starting points have been approved by this court in circumstances involving far fewer offences: see HKSAR v Xie Guohong [2004] HKCU 313 ; (CACC 384/2003, unreported); HKSAR v Lui Cho Yiu [2004] HKCU 1064 ; (CACC 81/2004, unreported) and HKSAR v Cheng Wai Kai [2008] HKCU 932 ; (CACC 338/2007, unreported). From those cases and others we were referred to during argument it is apparent that there is an increasing appreciation of the need for deterrent sentences for offenders who are professional or serial burglars.
So far as sentence is concerned, much will depend on the aggravating circumstances of the individual case. However where the facts reveal the offender to be a professional burglar then that is plainly an aggravating factor and, where several offences are also involved, the totality of sentence would, depending on other factors, often reflect a notional starting point of more than 5 years’ imprisonment.
Those other factors were illustrated in Cheng Wai Kai by Yeung JA at para 15 where he said:
‘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 instruments or equipment; (2) the offence is committed by two or more people; (3) the offence targets 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 a similar nature, and (6) the offender commits multiple offences.”
14.於HKSAR v Chan Kong Yiu（陳江耀）[2011] HKCU 1498，被告人涉及兩宗不同的案件，即 DCCC 906/2010 及 DCCC 500/2010。於 DCCC 906/2010 中，被告人承認爆竊一個商業處所，被判處監禁 20 個月。原審法官下令該刑期與 DCCC 500/2010 的 42 個月刑期分期執行，即總刑期為 62 個月監禁。被告人不服判刑，提出上訴許可申請。上訴法庭指：
“6. … Having heard submissions, we took the view that the sentence imposed on the applicant, far from being manifestly excessive, was in fact inadequate to reflect the seriousness of the offences that the applicant had committed.
7. We took the view the applicant’s overall sentence should be 68 months. We therefore granted leave to appeal and treating the application as the appeal proper, we allowed the appeal by increasing the applicant’s sentence to 68 months. …
36. The applicant was clearly a professional burglar. He had 6 previous convictions, all for burglaries committed between 1986 and 1997. Of course, the applicant committed another burglary in 2003.
37. The Court of Appeal had indicated again, in HKSAR v Wu Chi Tai, Kennis (unreported CACC 256 & 257/2010), the need for deterrent sentences for offenders who are professional or serial burglars. Hartmann JA said in paragraph 23 of the judgment:
It is also apparent, as this Court (differently constituted) noted in HKSAR v Fan Kit Hung [2009] 6 HKC 314, that there is an increasing appreciation of the need for deterrent sentences for offenders who are professional or serial burglars. …
39. A 30-month starting point for non-domestic burglary is suitable for one without any special aggravating feature, and in particular, normally only for a 1st offender.
40. The burglary in DCCC 906/2010 was quite a bad case when the applicant burgled an office unit by first prizing open the metal grille of the building on the ground floor and then the metal shutter of the unit. The applicant was clearly well equipped as he was able to cut open two safes. We could not ignore the fact that the applicant, by then, had already had 6 previous convictions for burglary.
41. We wish to echo what McMahon J emphasized in Fan Kit Hung (supra) at para 7 of the judgment:
From those cases and others we were referred to during argument it is apparent that there is an increasing appreciation of the need for deterrent sentences for offenders who are professional or serial burglars.
42. We were of the view that the starting point for the burglary offence in DCCC 906/2010 should be 3½ years’ imprisonment. With the guilty pleas, the sentence in DCCC 906/2010 should be 28 months’ imprisonment.”
15.本席不接受一般加刑的幅度是 3 至 6 個月，要視乎案情而定。況且，於被告人上一次的上訴中（CACC 222/2022），上訴法庭已指出：
「24. 當然，本庭並非認為有必要量化同類罪行的定罪紀錄以決定加刑幅度，本庭只是指出不應單靠比較不同案件的判刑去衡量幅度是否合適。」
16.可是本席同意被告人只是獨自行事、犯案手法原始。涉案辦公室是非住宅處所，初步量刑基準為 30 個月監禁。被告人是同類控罪的積犯，剛因相同控罪刑滿出獄數月後又再犯，因此本席將量刑基準上調 6 個月。被告人適時認罪，可獲三份一的減免，刑期減為 24 個月監禁。
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