Secretary for Justice v. Tsang Hon Yin, Anthony

CAAR 5/2004

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

APPLICATION FOR REVIEW NO. 5 OF 2004

(ON APPEAL FROM DCCC 375 OF 2004)

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BETWEEN

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Before:   Hon Stuart-Moore VP, Lugar-Mawson and Lunn JJ

Date of Hearing:  16 December 2004

Date of Judgment: 16 December 2004

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J U D G M E N T

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Stuart-Moore, VP (giving the judgment of the Court):

1.On 15 July 2004, the respondent pleaded guilty in the District Court before Judge Sweeney to the burglary of the main switch room on the ground floor of Block A, Shek Lin House on the Shek Wai Kok Estate in Shek Kwai Street, Tsuen Wan (“the premises”).  A pipe-bending machine valued at $2,000 was stolen.  For this offence, the judge imposed six months’ imprisonment which is now the subject of an application, made on behalf of the Secretary for Justice (the applicant) pursuant to section 81A of the Criminal Procedure Ordinance, Cap. 221, for a review of sentence.

The facts

2.The agreed summary of facts revealed that the respondent was arrested as the result of an anti-burglary operation on 30 December 2003.  The respondent was acting suspiciously as he pushed a handcart towards the premises.  He was seen repeatedly to look around before opening the door of the premises with a key and going inside.  Five minutes later, he came out and put the pipe-bending machine onto his handcart.  The respondent then locked the door to the premises behind him.  He was wearing gloves.

3.When the respondent was intercepted by police, he explained that he had obtained the keys to the premises from the Housing Department for the purpose of collecting the pipe-bending machine.  This explanation was rejected by a representative of the Housing Department.  The prosecution was able to establish that the property in question, which had been left at the premises on 30 December 2003, belonged to the private company which had responsibility for the maintenance work on the Shek Wai Kok Estate.  No one had been given authority to take the pipe-bending machine away.

4.A former employer of the respondent confirmed that his company had been responsible for the maintenance work on the estate between mid-1999 until mid-2002.  During that time, the respondent had access to the estate keys including the key to the main switch room.  One of the keys found on the respondent fitted the lock to that room.

Antecedents and mitigation

5.The respondent’s criminal record revealed that he had been convicted on eight occasions of possessing dangerous drugs between 1993 and 1996.  His last conviction was recorded on 22 October 2002 when he was sent to the Drug Addiction Treatment Centre for theft.

6.In mitigation, apart from the respondent’s plea of guilty, it was submitted that there were no aggravating factors to be taken into account.  The respondent, at the time of sentence, was thirty-one years old, single, and a qualified electrician doing part-time work on construction sites.

Sentencing

7.The judge, having reviewed the facts of the case, correctly noted that there was a guideline tariff of two-and-a-half years’ imprisonment for burglary of non-commercial premises but he went on to say:

“However, that guideline is not, of course, a straightjacket.  It has to be applied realistically and proportionately.  I bear in mind that there are no aggravating features to this case and that the value of the goods here amounts to only $2,000.” 

The judge then took a starting point of nine months and reduced this by a third to six months’ imprisonment to reflect the plea of guilty.

The application 

8.Mr Zervos, SC, on the applicant’s behalf, submitted that there was no reason for the judge to have departed from the usual guideline in a case such as this.  He referred us to R v Wong Man [1993] 1 HKC 80 in which the Court of Appeal reviewed a number of earlier cases in relation to the guidelines for sentence in burglary cases, commenting that:

“… Of greater relevance is the decision in R v Lau Siu-kwong (Crim App 628/87, unreported) where another division of this court referred to R v Fu Kwok-leung (Crim App 246/85, unreported), R v Khan Noor Said (Crim App 548/87, unreported) and R v Tang Ping (Crim App 93/88, unreported), and stated that the correct starting point for sentence in a case of burglary of non-domestic premises is two and a half years’ imprisonment.” 

9.More recently, in a case to which Mr Zervos also referred, it was stated in the judgment given on 30 May 2001 in HKSAR v Sim Ka-wing, CACC 450/2000 (unreported) that:

“The conventional starting-point of 2½ years’ imprisonment for the burglary of non-domestic premises relates to burglaries with no aggravating or mitigating features.  Such burglaries will involve a measure of planning, and thus a degree of premeditation and planning is already built into the conventional starting-point.  The conventional starting-point can be lowered in the case of the opportunistic burglar, akin perhaps to the sneak thief who walks into an open office to steal whatever he can find.  Likewise, the conventional starting-point can be increased in the case of professional criminals who plan their burglaries with meticulous care and steal goods and cash of considerable value.”

10.It is plain, as Mr Zervos accepted, that the respondent had long since ceased to work at the estate for the company which was responsible for its maintenance.  It is apparent that this was not a ‘breach of trust’ case in the sense referred to in R v Barrick [1985] 81 Cr.App. 78.  Nevertheless, the fact remains that this was not by any means an opportunistic burglary.  The respondent had kept the key to the premises, from the time his employment had been terminated in mid-2002, until 30 December 2003 which is indicative of premeditation on his part.  Furthermore, he was able to use his particular knowledge as a former employee at the estate to commit the offence and it is not without interest that the respondent was equipped with a handcart to take this sizable stolen item away which is indicative of an awareness on his part of the property he was likely to find inside the premises which, we note, had no window. 

11.Realistically, Mr Coghlan for the respondent did not seek to suggest that the judge’s starting point could be supported.  He accepted that there was no good reason for such a dramatic departure from the guidelines, and that the sentence would, in normal circumstances, necessarily have to be increased. 

12.In our view, a sentence falling well below the recognised guidelines, as here, can only be justified where the circumstances are wholly exceptional.  We do not consider that this was the situation in the present case.  It was a relatively standard burglary.

13.If there had not been a further complication in this case, we would have allowed this appeal and adopted a starting point of thirty months.  Giving a discount of a third to reflect the respondent’s timely plea, this would have reduced the respondent’s sentence to twenty months with perhaps a small, discretionary, adjustment downwards, to allow for the fact that that would have represented a substantial increase in the respondent’s sentence. 

14.There is, however, a complication and an awareness of this on the part of counsel seems to have arisen only at the start of today’s proceedings.  Unfortunately, this is once again the result of a failure to consolidate cases involving the same offender at the same court.

15.On 11 November 2004, the respondent, having pleaded guilty, was sentenced by Judge Poon in the District Court in respect of two further burglaries on commercial premises, committed on 25 November 2003 and 5 December 2003 respectively.  The respondent was not arrested for those offences until 21 May 2004 while he was on bail for the present offence.  Judge Poon, having been made aware of the pending review in this case, stated that if the burglary with which we are concerned had been included, as it should have been, on one charge sheet with the other burglaries, she would have taken a starting point of three-and-a-half years.  With a discount for the pleas, that would have left twenty-eight months.  Bearing in mind that the respondent had served already four months of his sentence of six months in the present case, the judge passed concurrent sentences of two years for the two burglaries with which she was concerned, commencing on 11 November 2004, the day sentence was imposed.  In our view, therefore, justice has now been done.

Conclusion  

16.Accordingly, we shall not, pursuant to section 81B of the Criminal Procedure Ordinance, alter the sentence which Judge Sweeney imposed. 

Mr Kevin P. Zervos, SC, SADPP and Mr David Leung, SGC, of the Department of Justice, for the Applicant.

Mr Christopher Coghlan, instructed by Messrs Kwok, Ng & Chan, assigned by the Director of Legal Aid, for the Respondent.