HKSAR v. Cheng Chi Shing

CACC236/2000

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO.236 OF 2000

(ON APPEAL FROM DCCC 189 & 190 OF 2000)

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Coram: Hon Stuart-Moore, Acting CJHC, Stock JA and Gall J in Court

Date of Hearing: 6 March 2001

Date of Judgment: 6 March 2001

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J U D G M E N T

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Gall J (delivering the judgment of the Court) :

1. The applicant was convicted on 31 May 2000 by His Honour Judge Sweeney in the District Court of one count of burglary. He was sentenced to three years and four months' imprisonment. He applied for leave to appeal both conviction and sentence. His application relating to conviction was dismissed when this was not pursued.

2. The facts found by the judge were that on 3 January 2000 at about 12:45 a.m., the police patrolling a rear lane saw a man emerging from premises known as Brilliant Charm Limited (also known as Hing Luen Provisions Holding Company). He pulled down the shutter door and walked away, holding two plastic bags. He was followed by the police to a stairway at 35 Mut Wah Street and he was stopped at those premises. The bags were found to contain $10,300 in $5 coins. On the stairway, the police found four cartons of coins to a value of $45,600. The police returned to Brilliant Charm Limited and found that the rear roller door had been forced. The premises had been ransacked and a safe had been forced open.

3. At about 7:50 a.m., the police raided the home of the applicant where they found a bag containing $23,350 in notes and coins, and plastic bags of coins totalling $5,480.

4. The owner of the premises reported to the police and testified that $422,250 in notes and coins had been taken from the safe.

5. In passing sentence, the judge found that the burglary had been professionally carried out by two and perhaps three men, that it was well-planned, a safe forced open, and that the sum of $422,250 had been taken.

6. He took as a starting point for the sentence of the applicant three years and four months' imprisonment, having considered the facts and having found from his police record that the applicant had four previous convictions for burglary. He described the applicant as a professional burglar who had committed the offence some seven months after release from prison for a similar offence.

7. Mr Kwok argues that the starting point taken by the judge is too high and that it is wrong in principle to increase the starting point for a sentence in view of the record of an applicant. In support of his first point, Mr Kwok, in his written submission, refers to a number of authorities which we do not need to go through, but which set out that most of the sentences for a non-domestic burglary are between two and four years, with two and a half years being the sentence most often taken as a starting point. We note that in almost all the cases referred to in Mr Kwok's submission, the property taken was of small value and in most of them where two and a half years was adopted as a starting point, the burglar acted alone. The maximum penalty for burglary is a period of 14 years, and this offence was committed, as the judge observed, not as the act of an opportunist amateur. The burglars broke open not only the premises but also a safe, acting in concert and taking a considerable sum of money. Whilst we acknowledge that the normal sentence for non-domestic burglary after trial will often take a starting point of two and a half years, courts are not confined by the authorities to such an extent that, where the facts and the actions of the accused justify, they cannot take a higher starting point.

8. The second point raised by Mr Kwok is that the starting point for the sentence in respect of the applicant was wrongly increased by the judge in view of the record of the applicant. He also argues that the applicant has a sense of grievance, in that the starting point taken for his co-accused was a lesser period of time.

9. 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."

10. 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.

11. The application for leave to appeal against sentence is dismissed.

Representation:

Mr Thomas Law, SADPP and Miss Vivien Chan, GC of the Department of Justice, for the Respondent

Mr Eric Kwok, instructed by Director of Legal Aid, for the Applicant