HKSAR v. Wong Chung Hang, Henry

CACC 49 /2025, [2025] HKCA 1144

On Appeal From [2025] HKDC 303

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 49 OF 2025

(ON APPEAL FROM DCCC NO 1111 OF 2021)

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BETWEEN

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JUDGMENT

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1.The applicant pleaded guilty to two charges of burglary, contrary to sections 11(1)(b)  and (4)  of the Theft Ordinance, Cap 210 (Charges 2 and 5)  and an additional charge of failing to surrender to custody without reasonable cause, contrary to section 9L(1)  and (3)  of the Criminal Procedure Ordinance, Cap 221 (Charge 6). On 20 February 2025, he was sentenced by Deputy District Judge M Chow (“the judge”)  in the District Court to a total of 43 months’ imprisonment. He now seeks leave to appeal such sentence.

Facts accepted by the applicant

2.The burglary in Charge 2 took place in a fresh food store called Qdama, situated on the Ground Floor, No 70A Tai Po Road, Sham Shui Po in Kowloon.  On 7 February 2021, at 9 pm, the store manager left the store having locked its gate.  On the following day, at 5 am, he returned to the store and found that the switch box controlling the gate had been prised open.  He also discovered that $6,000 in cash was missing from the three cash trays of the cash register. 

3.CCTV evidence was obtained from various locations.  It revealed that, on 8 February 2021:

(i)  At 2:06 am, Yu Kin San (“Yu”), who was the first defendant in Charges 2 and 5, and an unknown man, got out of a black 7-seater vehicle, to which false registration number plates had been affixed.  Whilst the other man prised the switch box, opened the gate and remained outside, Yu entered the store and ransacked it;

(ii)  At 2:15 am, Yu left the store with the cash trays and cash register.  After he was joined by the other man, they both boarded the black 7-seater vehicle;

(iii)  Between 2:25 am and 2:27 am, the black 7-seater vehicle and another silver car were seen arriving outside the Kwun Tong Playground. Yu and the other man alighted from the black 7-seater vehicle with two cash trays and entered the playground.  Yu subsequently returned to the 7-seater vehicle and re-entered the playground with a third cash tray;

(iv)  At 2:39 am, the applicant got out of the black 7-seater vehicle and entered Kwun Tong Playground;

(v)  At 2:51 am, the above persons left the playground in the black 7-seater vehicle and the silver car respectively;

(vi)  At 3:15 am, Yu alighted from the silver car and entered the building of his residence in Sham Shui Po; and

(vii)  At 5:31 am, the applicant entered the building of his residence in Sha Tin.

4.The burglary in Charge 5 took place in a grocery shop named Man Kee Dried Seafood situated on the Ground Floor, No 363 Ki Lung Street, Sham Shui Po in Kowloon. 

5.On 23 February 2021, the shopkeeper left the grocery shop after locking the gate.  He returned to the shop and found its gate prised open and the shop ransacked.  The loss comprised 6 boxes and 2 bottles of bird’s nest, as well as 6 boxes of pearl powder, the total value of which was $72,600.

6.CCTV evidence showed that:

(i)  At 3:29 am, a black 7-seater vehicle, to which false registration number plates were again affixed, briefly parked outside the shop.  The vehicle returned about half an hour later and briefly parked there again; 

(ii)  At 3:59 am, Yu was seen moving some polystyrene boxes to the gate of the shop.  Surrounded by the polystyrene boxes, he began fiddling with the gate; and

(iii)  Between 4:02 am and 4:06 am, the same vehicle returned and parked outside the shop again.  In the meantime, Yu opened the gate of the shop, and together with Chan King Hei (“Chan”), who was another co-defendant in respect of Charge 5, entered the shop.  After that, they boarded the vehicle and left.

7.In his video recorded interviews, the applicant stated that:

(i)  (In respect of Charge 2)  In the small hours of a day in February 2021, he drove two friends to Tai Po Road.  Those friends later alighted from his vehicle and returned with two iron boxes.  He was subsequently asked to drive them to a park in Kwun Tong.  After their arrival, one of the friends gave him $1,800 as remuneration; and

(ii)  (In respect of Charge 5)  At 3 pm on the day in question, he drove Yu and another person to Pei Ho Street Market and Cooked Food Centre.  Yu then alighted from the vehicle and, at around 4 am, together with Chan, returned to the vehicle with several polystyrene boxes filled with bird’s nest.  When Yu and Chan returned, he could hear an alarm sounding.

8.The applicant did not attend court for his trial which was set down for 8 days from 3 to 12 July 2024 in the District Court. Accordingly, an arrest warrant was issued against him on 3 July 2024, and the trial dates vacated.  Thereafter, the police tried to reach the applicant by his mobile telephone number, but in vain.  At 9:45 am the same day, he used his mother’s mobile telephone to call the police back and claimed that he was in his home and would wait for the police to come.  At 10:30 am, the police arrived at his home but nobody answered the door.  Through their further telephone conversations, the applicant also caused the police to go to Kowloon Tong MTR Station and the Wanchai District Court to locate him, but all attempts were in vain and he did not pick up any calls. 

9.On 26 August 2024, the applicant was arrested when he surrendered at Sheung Shui Police Station.  

Sentencing of the applicant

10.The applicant was 41 years old at the time of sentence.  As noted by the judge, he had no less than 29 previous convictions, 8 of which were related to dishonesty and no less than 5 related to causing wasteful employment of the police[1]. In addition, the present offences of burglary were committed within one month of his release from prison in January 2021[2].

11.In passing sentence, whilst accepting that the role of the applicant was comparatively minor, the judge said that the present burglaries could not have been committed without his assistance.  She adopted a starting point of 30 months’ imprisonment in respect of each of Charges 2 and 5, and enhanced the starting point by 9 months’ imprisonment on the basis of certain aggravating factors identified by her, namely:

(i)  His criminal record and the commission of the present offences shortly after his release from prison;

(ii)  The participation of more than one person in the burglaries; and

(iii)  The commission of two burglaries within a short period of time.

12.In respect of the enhanced starting point of 39 months’ imprisonment on each of Charges 2 and 5, the judge gave the applicant a discount of 20% for his late pleas, reducing each sentence to 31 months’ imprisonment.  She also ordered that 9 months of the sentence on Charge 5 was to run consecutively to the sentence on Charge 2, resulting in 40 months’ imprisonment.

13.The judge used 4½ months’ imprisonment as the starting point in respect of Charge 6, which she reduced by one-third for the applicant’s timely plea to 3 months’ imprisonment.  She ordered the sentence on Charge 6 to run wholly consecutively to the sentence of 40 months’ imprisonment on Charges 1 and 2, thus resulting in the overall sentence of 43 months’ imprisonment.  

Ground of appeal

14.The applicant acts in person in the present application.  Whilst he did not articulate any ground of appeal in his Form XI, in his homemade submissions as well as in his oral remarks before me this morning, he asserts that there is a disparity between the sentence received by him and that received by Yu.

Respondent’s submissions

15.Ms Go, for the respondent, submits that the correct approach to the applicant’s complaint is to consider whether the sentence he received was a proper one.  She argues that, in the circumstances of the present case from which a number of aggravating features can be discerned, the sentence could not be said to be manifestly excessive when the charges are viewed either individually or cumulatively.

Consideration

16.Since the applicant has complained about a disparity in sentence, I have inspected the sentencing records in relation to Yu and would observe that he had made timely pleas to a total of four charges of burglary (including the present Charges 2 and 5)  and was sentenced by another judge to 40 months’ imprisonment[3].

17.It is therefore not a case where the applicant and his co-defendant were sentenced by the same judge on the same occasion in respect of exactly the same offences.  Accordingly, it seems to me that the applicant’s complaint falls within the second situation in R v So Hung Lee and Anor[4], the relevant passage of which reads:

“Two situations can arise. The first is where there is a disparity between sentences passed on the same occasion by the same judge. In this case the sentence should be varied by this court if, but only if, it can be shown that the judge has not properly apportioned the blame between the accused. If the sentence was otherwise appropriate and the judge was under no misapprehension of the roles of the various accused, then the sentence should stand … The second is when different sentences are passed on different accused for the same offences by different judges on different occasions. In this case, the only consideration must be whether the sentence passed on the appellant was appropriate.”

Therefore, as correctly submitted by the respondent, the question to be determined by an appellate court is whether the sentence received by the applicant was in itself an appropriate one.

18.The customary starting point for non-domestic burglary is at present 30 months’ imprisonment.  Where a defendant is charged with more than one burglary, the appropriate overall sentence will inevitably be greater: how much greater will depend on the facts and circumstances of the particular case.

19.Although the facts accepted by the applicant revealed a limited physical involvement on his part in both burglaries, based on his admissions in the video recorded interviews, it is clear that he was the driver of the vehicle used to transport his accomplices to and from the scene of the each burglary.  He was duly rewarded for his services.  Although the value of the stolen property may not have been enormous, neither could the crimes be said to be opportunist, since the applicant, acting in concert with the other burglars, had plainly targeted retail shops in the Sham Shui Po area where transactions were made in cash, or where valuable dried seafood was sold.  In each burglary, which was clearly a premeditated crime, more than one person was involved and a getaway car, to which false registration number plates had been affixed, was used and driven by the applicant to assist all of the culprits to leave the scene after the burglaries.  Given the applicant’s appalling criminal record involving offences of dishonesty and resulting in sentences of imprisonment, which had evidently failed to deter him from committing further offences, particularly when he had only recently emerged from prison in respect of one such offence, the present case cannot be characterised as a less serious form of burglary. 

20.By reason of the foregoing, no criticism can be levelled against the overall sentence of 40 months’ imprisonment, or the notional starting point of 50 months’ imprisonment (the applicant having been given only a 20% discount for his late plea), in respect of two separate burglaries committed two weeks apart.  Indeed, as the Court has already said in HKSAR v Pinto[5], the time may have come for the Court of Appeal to reconsider, in an appropriate case, the levels of punishment for burglary in its various forms, bearing in mind that the maximum sentence for the offence under the Theft Ordinance is 14 years’ imprisonment.  The conventional starting point of 2½ years’ imprisonment for a non-domestic burglary (and 3 years’ imprisonment for domestic burglary)  may now be out of line with other sentences for serious offences under the Theft Ordinance and bear little relation to the maximum sentence stipulated by the legislature. 

21.It should be remembered that burglaries are more than an irritation and a violation of people’s homes and businesses.  In a domestic setting, some occupiers never fully come to terms with the fact that their homes have been surreptitiously invaded, their lives disturbed, their belongings ransacked, their privacy breached and their possessions of value, sometimes great sentimental value, taken from them: while burglaries of businesses in particular deprive hard-working people of the fruits of their honest labours in times which are difficult for everyone.  Insurance, even for those fortunate to have it, seldom covers the cost of what is lost or destroyed in the process.

22.As to failing to surrender to custody without reasonable cause, which was again a wholly separate offence committed by the applicant on a subsequent date, the judge was entitled to regard the matter as entirely separate and to pass a wholly consecutive sentence.  In the premises, the applicant’s conduct (described above)  led to a waste of the time of the court, the police and the prosecution, and resulted in the dissipation and duplication of public funds.  I can see no reasonable argument that the starting point of 4½ months’ imprisonment and the ultimate sentence of 3 months’ imprisonment for this offence on its own was wrong in principle or manifestly excessive.

23.It follows that it is not a reasonable argument that the applicant has received a manifestly excessive sentence; nor can it be reasonably argued that the sentence is wrong in principle under present guidelines.  Leave to appeal is accordingly refused.

24.The applicant is advised that he has the right to renew his application for leave to appeal to the Court of Appeal, but he is also warned that the Court has the power to order the loss of any time the applicant has spent in custody pending his appeal if it were to come to the view that there was no justification for his renewal of the application.

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

The Applicant appeared in person