HKSAR v. Chan Kwok Choi
Read the full judgment text of CACC 365/2002 on BabelCite. This Court of Appeal judgment was delivered on 9 January 2004 before Stuart-Moore VP, Burrell J and Lunn J.
Criminal law – burglary – commercial premises – sentencing – whether sentence manifestly excessive – normal starting point of 2.5 years' imprisonment after trial – aggravating features justifying uplift – professional criminal category – out-of-time application for leave to appeal sentence – forfeiture of property – Criminal Procedure Ordinance (Cap 221) s.102 – motor vehicle excluded from forfeiture power – sub-section (1) of s.102 – sub-section (2)(b)(ii) – sub-section (7) – revocation of forfeiture order made without jurisdiction. The applicant was convicted after trial of burglary of a game centre in Mongkok in January 2002. He had acted alone, using sophisticated housebreaking tools to cut through steel sheeting, break through a wall, and cut open door locks with bolt cutters, before stealing gaming equipment and cash worth about HK$60,000. He had nine previous convictions including robbery, handling stolen goods, attempted theft, going equipped for theft, and criminal damage. The sentencing judge imposed 3.5 years' imprisonment, being the normal 2.5-year starting point for commercial burglary after trial uplifted by one year for aggravating features. The applicant applied for leave to appeal against sentence out of time, over eight months after trial, after his conviction appeal had been dismissed. Held, dismissing the application: (1) the sentencing judge was entitled to impose a higher than normal sentence; the degree of planning, equipment used, damage caused, and value of property stolen placed the case into the higher category of professional criminals described in HKSAR v Sim Ka-wing, CACC456/2000; the one-year uplift, while towards the top end of an acceptable range, was not excessive. (2) The ground based on the applicant's wife having been injured in a fire in Shenzhen was devoid of merit; the details were extremely vague, the sickness certificate did not give the date of the accident, and the omission to mention the fire in the bail affirmation was a surprising one. (3) The reason for the eight-month delay was also devoid of merit, but in any event the appeal would have been dismissed on its merits. (4) However, the forfeiture order made in respect of the applicant's car at sentencing was made without jurisdiction because section 102(7) of the Criminal Procedure Ordinance (Cap 221) expressly excludes motor vehicles from the forfeiture power conferred by section 102(2)(b)(ii); the order was accordingly revoked. Application refused save for revocation of the forfeiture order of the car.
Legal issues: Whether sentencing judge was entitled to impose a higher than normal sentence for commercial burglary · Whether sentence should be reduced due to wife's injury in a fire in Shenzhen · Whether the out-of-time application for leave to appeal sentence should be granted · Whether the forfeiture order of the applicant's car was valid
Outcome: Application for leave to appeal against sentence out of time refused; forfeiture order of the applicant's car revoked for lack of jurisdiction.
Cited by 7 cases
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CACC000365A/2002 CACC365/2002 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF APPEAL CRIMINAL APPEAL NO.365 OF 2002 (ON APPEAL FROM DCCC 243 OF 2002) ---------------------
---------------------- Coram: Hon Stuart-Moore VP, Burrell J and Lunn J in Court Date of Hearing: 9 January 2004 Date of Judgment: 9 January 2004 ----------------------- J U D G M E N T ----------------------- Hon Burrell J (giving the judgment of the Court) : 1.On 3 July 2002 the applicant was convicted after trial of an offence of burglary. He was sentenced to 3 1/2 years' imprisonment. Later the same month he applied for leave to appeal against his conviction. That application was heard and dismissed by this court in March 2003. 2.On 15 April 2003, over eight months after his trial, he applied for leave to appeal his sentence out of time. Since then the matter has been adjourned once at the applicant's request to enable him to get legal representation. 3.The facts of the offence as found by the trial judge Deputy Judge Mackintosh can be stated quite briefly. A game centre in Mongkok was forcibly broken into in the early hours of a morning in January 2002. The applicant was the person who broke in, he was alone at the time. In order to gain entry he climbed onto the roof, cut through steal sheeting and broke through a wall. In order to leave after the burglary, he used bolt cutters to cut open door locks. Needless to say, all this was done with sophisticated, professional housebreaking tools and implements which he had brought with him for the purpose. When inside the premises he broke open and damaged the gaming machines and stole gaming equipment and cash to a value of about $60,000. 4.Before sentencing the following aggravating features were noted by the learned judge :
5.The learned judge also correctly stated that the normal sentence for burglary of a commercial premise after trial was 2 1/2 years' imprisonment. He imposed a higher sentence than normal because of the aggravating features of the offence itself to which reference has already been made. 6.Mr Zervos, SC for the respondent has referred us to a number of authorities which demonstrate that the normal starting point for commercial burglaries is indeed 2 1/2 years' imprisonment. Obviously, it can be both lower or higher depending on all the circumstances. 7.The sole issue before this court therefore is : was the learned judge entitled to impose a higher than normal sentence and if so, by how much. 8.We are satisfied that he was so entitled. The degree of planning, the equipment used, the damage caused to gain entry, the damage to the machines and the value of the property stolen, all taken together put this case into a higher category, a category described in HKSAR v. Sim Ka-wing, CACC456/2000, as "cases of professional criminals who plan their burglaries with meticulous care and steal goods and cash of considerable value". The applicant cannot complain about being labelled as a professional criminal in view of his nine previous convictions including offences for robbery, handling stolen goods, attempted theft, going equipped for theft and criminal damage. 9.The amount by which the normal sentence was increased in this case to reflect the aggravating features was one year. Whilst such an increase is towards the top end of an acceptable range, we do not consider it to be excessive in view of the number and the nature of those aggravating features. 10.By his 2nd ground of appeal, the applicant argues that his sentence should be reduced because his wife was injured in a fire at her home in Shenzhen. There is a degree of uncertainty about this fire. In a recent affirmation dated 7 January 2004 he stated the fire occurred in August 2002, that is after his trial, and that he did not learn about it until September 2002. It was still before his bail application. The affirmation in support of his bail application pending appeal makes no reference whatsoever to the fire. This is a surprising omission in the circumstances. 11.We have also received a sickness certificate from a clinic in Tai Shan City PRC which does not take the matter any further. It does not give the date of the accident. It merely states that Madam Chen Ling received second degree burns to her lower limbs and was treated at the clinic. That certificate is dated 15 December 2003. 12.We cannot now take this matter into account. A domestic accident however unfortunate, the details of which are extremely vague, occurring 1 1/2 years ago cannot provide this court with any grounds for reducing an otherwise proper and correct sentence. 13.Accordingly we find both of the main grounds of appeal to be without merit. The reason given for the application being eight months late is also devoid of merit. The applicant states that he only applied to appeal sentence out of time because his appeal against conviction was dismissed in March 2003. He says he did not apply at the proper time because he had been advised that his appeal against conviction had good prospects of success. We reject this contention. Other than stating that it is devoid of merit it is unnecessary to investigate it further because we have concluded that the appeal would have been dismissed in any event on its merits. 14.There is one final matter. The learned judge at the time of sentencing made an order forfeiting the applicant's car which was parked near the scene. That order was made pursuant to section 102 of Criminal Procedure Ordinance, Cap.221, which gives a court power of forfeiture of property in certain circumstances. The relevant provisions are :
15.However, Mr Zervos has brought to this court's attention the provisions of section 102(7) which were not drawn to the attention of the learned judge at the time of sentencing. That subsection reads :
Accordingly there was no jurisdiction to make the forfeiture order of the car and we now revoke it. 16.Save for the revocation of the forfeiture order of the car, this application is refused.
Representation: Mr K.P. Zervos, SC, SADPP of the Department of Justice, for the Respondent Mr Hanif Mohamed Mughal, instructed by the Legal Aid Department, for the Applicant |
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