HKSAR v. Lee Wai Keung

CACC 4/2004

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 4 OF 2004

(ON APPEAL FROM DCCC NO. 670, 826 & 1040 OF 2003)

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BETWEEN

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Before: Hon Stock JA, Beeson J and McMahon J in Court

Date of Hearing: 8 July 2004 and 25 August 2004

Date of Judgment: 25 August 2004

Date of Reasons for Judgment: 15 October 2004

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REASONS  FOR  JUDGMENT

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Hon Beeson J: (giving the judgment of the Court)

1.The Applicant pleaded guilty to 4 counts of Burglary in the District Court before Judge Whaley.  Two of the burglaries were of domestic premises (DCC 826 of 2003-C1 and C2) and two of commercial premises (DCC 670 of 2003-C5 and C6). 

2.On each of Charges 1 and 2, the Applicant was sentenced to 2 years’ imprisonment, to be served concurrently. On each of charges 5 and 6, he was sentenced to 20 months’ imprisonment.  20 months of the sentence on Charge 5 were ordered to be served consecutively to the sentences on Charges 1 and 2 and 8 months of the sentence on Charge 6 were ordered to be served consecutively to the sentence on Charge 1, 2 and 5.  That made a total of 4 years and 4 months imprisonment.

3.On 11 June 2003, the Applicant had been sentenced to 2 years’ imprisonment on another Burglary charge (DCC 150 of 2003) and the judge ordered that the sentences in this case were to run wholly concurrently with that earlier term of imprisonment.  The Applicant sought leave to appeal against sentence on all four charges.

Procedural Background

4.The Applicant appeared before us in person, Legal Aid having been refused on 23 February 2004.  He applied on 22 March 2004 for an adjournment for 2 months, so that he could apply to the Bar Association for assistance.  On 24 May 2004, the Bar Association advised that no application had been made by the Applicant and a further hearing was fixed for mention.  On 9 June 2004, the hearing date was fixed for this appeal. 

Grounds of Appeal

5.The grounds of appeal were simple.  The Applicant submitted the total length of the sentences was excessive.  He claimed that he did not understand the difference between a consecutive sentence and a concurrent sentence.  He considered the sentences unfair and did not understand why they were imposed.  He believed these sentences to be excessive when compared with the usual length of sentence for such offences and he asked this court to impose more appropriate sentences.

6.The Applicant was aggrieved also because he believed that he would have had a shorter sentence had the two domestic burglaries been dealt with at the time he was sentenced in DCC 150 of 2003.  It was also possible that he had been “short-changed” in terms of the time spent in custody provision.

7.Having heard the Appellant, on this point in particular, we adjourned the application so that counsel for the Respondent could investigate the matters raised by the Applicant. 

Applicant’s Background

8.The Applicant has a lengthy criminal record starting in 1984.  In 1987, he was convicted of 4 counts of robbery.  In 1995, he was sentenced to 16 months’ imprisonment for burglary.  In February 1997 and May 1997 he was convicted of theft.  In September 2000, he was sentenced to 2 years’ imprisonment for burglary and on 11 June 2003, he was sentenced to 2 years’ imprisonment, again for burglary.  Other convictions include resisting arrest, assaulting a police officer, being a member of a triad society, blackmail and gambling.

9.The judge obtained a background report on the Applicant before sentencing.  That report gave comprehensive details of his family life, education and employment experience.  It also confirmed that the Applicant had a heroin addiction, which was said to have existed between 1991 and 1997.  According to the Applicant, he had managed to free himself of the habit after 1997.

10.In passing, we would comment that it is difficult to discern why the judge felt he needed a background report for this Applicant, given his lengthy criminal history.

Sentencing Consideration

11.In his Reasons for Sentence, the judge said he saw no reason to depart from the guideline starting points of 3 years imprisonment for burglary of domestic premises and two and a half years imprisonment for burglary of commercial premises.  He gave the Applicant the full discount of 1/3 for his pleading guilty.

12.The judge noted that the Applicant was 36 years old, that he had 12 previous convictions, comprising 19 offences and he had been sentenced, on 11 June 2003, for a burglary offence committed on 5 December 2002.  He noted too that the offences the basis of Charges 5 and 6 had been committed while the Applicant was on court bail.  Although the judge referred to this as a “disquieting feature” he did not treat it as an aggravating feature for sentencing purposes.

13.He was aware the Applicant had mixed with triads and had abused heroin.  The Applicant blamed the economic recession as having posed problems for his rehabilitation, but the judge did not find the financial difficulties alleged to be in any way mitigatory.  He noted that the Applicant had a supportive family and his claim that he was driven to burgle to raise money for medical treatment for his girl-friend’s father who had cancer.  The judge accepted that the Applicant was remorseful.

14.We believe that the judge adopted an overly lenient approach in sentencing the Applicant.  Because of the Applicant’s conviction record of similar offences and the number of offences to which he had pleaded, the judge would have been justified in increasing the starting points for sentence for both types of burglary.  Further, he commented on, but ignored, the aggravating feature that the burglaries of commercial premises, were committed while the Applicant was on court bail in DCC 150 of 2003.

15.The Applicant complained that the domestic burglaries, Charges 1 and 2, should have been dealt together with the Burglary in DCC 150 of 2003 because they were committed in the same period.  We note that the reason the cases were not dealt with together was because police did not know about those incidents until early 2003 when DNA evidence linked the Applicant to Charges 1 and 2.  Although the Applicant complained that all his cases should have been dealt with in December 2003, he chose not to tell the police about them, nor, apparently, did he tell the sentencing judge in DCC 150 of 2003.  No blame can attach to the police or the court for having dealt separately with those offences, particularly as different police divisions dealt with the cases.

16.The burglaries were committed on disparate dates (Charges 1 and 2 - 19.4.02, Charge 5 - 24/26.5.02, Charge 6 - 29.5.02); the judge chose to treat them as a course of conduct which justified almost entirely concurrent sentences.  Implicit in the judge’s sentencing was consciousness of the totality principle.  Presumably that was why he ordered these sentences to run wholly concurrently with the sentence the Applicant was already serving.

17.Consideration of the totality principle when sentencing, in these courts, almost invariably, is taken to mean that sentences should be reduced in length by its application.  Totality is a two-way process - sentences which are too short offend against the principle just as much as sentences which exceed a fair length.  In each sentencing exercise the court must balance its concern to protect an offender from an unfairly long term of imprisonment, with the need for proper retribution and the need to protect society from the depredations of an offender.

18.His criminal record shows that the Applicant follows the profession of burglary and society is entitled to demand he be sentenced properly for his wrongdoing.

19.With respect to the sentencing judge, he erred in the Applicant’s favour in two aspects – the offences committed on bail ought to have attracted an aggravated starting point, and the sentences ought not to have been ordered to run wholly concurrently with the sentence passed in June 2003.

20.There is no merit in this application and it is dismissed.

Mr P K Madigan, SGC of Department of Justice, for the Respondent

The Applicant, in person