HKSAR v. Li Siu Yeung

CACC 232/2004

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL APPEAL NO. 232 OF 2004

(On Appeal from DCCC No. 313/2004)

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BETWEEN

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Coram: Hon Stuart-Moore VP and Lugar-Mawson J in Court

Date of Hearing: 15 December 2004

Date of Judgment: 15 December 2004

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J U D G M E N T

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Hon Lugar-Mawson J: (giving the judgment of the Court)

Background

1.On 13 May 2004, Li Siu Yeung, the Applicant was convicted on his own plea by Deputy Judge Lin in the District Court of an offence of aggravated burglary, contrary to section 12(1) and (3) of the Theft Ordinance (Cap. 210) (the 1^st charge), an offence of resisting a police officer in the due execution of his duty, contrary to section 36(6) of the Offences Against the Person Ordinance (Cap. 212) (the 3^rd charge) and an offence of remaining in Hong Kong without the authority of the Director of Immigration after having landed unlawfully in Hong Kong, contrary to section 38(1)(b) of the Immigration Ordinance (Cap. 115) (the 4^th charge).  An offence of burglary, contrary to section 11(1)(b) and (4) of the Theft Ordinance (the 2^nd charge) was not proceeded with and left on the Court file.

2.On the same day the Applicant was sentenced to consecutive terms of imprisonment of 28 months on the 1^st  charge, 8 months on the 3^rd charge and 15 months on the 4^th charge, making his total sentence one of  4 years and 3 months’ (51 months) imprisonment.

3.The Applicant now seeks leave to appeal his sentences on the 1^st and 3^rd charges only.  No complaint is now made of the consecutive sentence of 15 months’ imprisonment on the 4^th charge. 

Facts

4.The agreed facts were that, the Applicant sneaked into Hong Kong illegally from Shenzhen on 30 January 2004.  He broke into an unoccupied village house at Pak Tin Village, Shatin, which he used as his hideout.  Having settled in, he took a knife and a screwdriver from the house and broke into the Anglican Church in the village and stole from within it a kitchen knife, 2 handbags, some food and a telephone.  His entry caused the burglar alarm installed in the church to sound at 15 minutes past midnight on 31 January 2004 and as a result the church’s pastor went to the church to check it.  He failed to notice anything unusual and left believing there had been a false alarm, he only discovered that the church had been burgled when he returned there at 1 p.m.  He then made a report to the police.

5.A party of police officers arrived at the village and followed the Applicant’s trail to the house where he was hiding.  A police officer climbed up to the 1^st floor balcony and found the Applicant inside the house.  When the officer identified himself as a police officer, the Applicant pointed a knife at him and shouted, “Don’t approach me.”  The officer withdrew.  The police then surrounded the house and another police officer spoke to the Applicant and asked him to surrender.  The Applicant refused and started shouting-out and brandishing the knife.  After a confrontation lasting a few minutes, the Applicant finally came out of the house and dropped the knife onto the ground.  In doing so he said “I saw that you have so many people, so I used the knife for self-protection.”

Sentencing

6.In sentencing the Applicant on the 1^st charge, the Judge took note of the fact that, as the Applicant was armed with a knife at the time of the offence, he was dealing with an aggravated burglary of non-domestic premises.  He took a starting point sentence of 3½ years’ imprisonment for this offence.  On the 3^rd charge of resisting a police officer, the Judge imposed a starting point of 12 months’ imprisonment as the Applicant had menaced the police officer with a knife.  On the 4^th charge of unlawful remaining, the Judge imposed the tariff sentence of 15 months’ imprisonment for this offence after plea.  The Judge then reduced the sentences on the 1^st and 3^rd charges by one-third to reflect the Applicant’s guilty pleas.  The Judge then took account of the fact that the Applicant had previous similar convictions.  In August 2001, he had been convicted of aggravated burglary (the Criminal Record summary incorrectly shows it as burglary) and entering Hong Kong unlawfully and had been sentenced to consecutive terms of imprisonment of 3 years and 15 months respectively.  His unlawful return to Hong Kong on this occasion had been very soon after he had completed his sentence and repatriated to the Mainland.  After taking the totality principle into account, the Judge ordered that the sentences on all charges run consecutively to each other.

Grounds of appeal

7.Mr Tracy, counsel for the Applicant, raises three grounds of appeal on his behalf.  Firstly, he says that the starting point of 3½ years’ imprisonment for the 1^st charge was too high, as this was only technically an aggravated burglary.  Secondly, he says that the starting point of 12 months’ imprisonment on the 3^rd charge is also too high, in that it fails to take into account that the Applicant’s resistance was confined to brandishing the knife at the police officers who were outside the house while the Applicant remained inside it.  Thirdly, there is a complaint about the competency of the solicitor who represented the Applicant at trial.  The chances of success on this ground depend on whether or not we grant the Applicant leave to adduce new evidence on appeal.

Discussion

Ground 1

8.We turn to the 1^st charge.  The essence of an offence of aggravated burglary under section 12 of the Theft Ordinance is that the offender commits a burglary while in possession of a “weapon of offence”, which is defined to mean:

“…any article made or adapted for use for causing injury to or incapacitating a person, or intended by the person having it with him for such use.” 

The knife the Applicant had with him when he burgled the church is clearly a “weapon of offence’.

9.Further, it is not a necessary part of the definition of the offence that the offender intended to use the weapon against any one, the mere fact that he has it with him is enough.  Mr. Tracy is therefore incorrect to describe the offence charged in the 1^st charge as “only technically an aggravated burglary” - it was an aggravated burglary.  That being said, the fact that the Applicant chose to take the knife with him in the course of the burglary can only indicate that, at the very least, he was prepared to use it to intimidate any person who may have discovered him inside the church.  It is certainly the case that later in the day he was prepared to use a knife to menace the police officer who came to arrest him.

10.The tariff for a simple, non-aggravated, burglary of non-domestic premises is 2½ years’ imprisonment after trial (see HKSAR v Ng Wai Hing [2003] 2 HKLRD 338 at 342E).   In the circumstances of the present case, particularly where the Applicant is a repeat offender, a starting point of 3½ years’ imprisonment for an aggravated burglary is not manifestly excessive.

Ground 2

11.In support of his argument in respect of the second ground of appeal, Mr. Tracy complains that the Judge failed to take four matters into account when fixing the starting point of 12 months’ imprisonment for the 3^rd charge.  Firstly, that it was dark when the police came to the house.  Secondly, that two of the police officers were in plain clothes. Thirdly, that when the Applicant brandished the knife the police were outside the house, and, fourthly, that when a uniformed police officer attended the scene the Applicant put down his knife and surrendered peacefully. 

12.Given the facts of the case, which the Applicant agreed, these matters are of little significance.  The Judge was aware it was about 6 p.m. when the police apprehended the Applicant.  It was in the agreed summary of facts.  That it must have been getting dark at that time is self-evident from the fact these events were in January.  The fact that two of the police officers were in plainclothes ignores the fact that the Applicant was in someone else’s house unlawfully and that the officer who climbed up to the 1^st floor balcony had identified himself to the Applicant as a police officer. 

13.The fact that the police officers remained outside the house and that the Applicant surrendered to them peacefully, ignores the fact that initially the Applicant chose to be aggressive towards the police and caused a confrontation which rapidly developed into a dangerous and tense situation.   There can be no doubt that he deliberately sought to prevent the police officers from doing their duty by brandishing the knife and threatening them with it.  Indeed it is fortunate that the presence of numbers in the police party inhibited the Applicant from using it in an attempt to evade arrest.  We have no doubt that both the starting point sentence of 12 months’ imprisonment and the resulting sentence of 8 months’ imprisonment imposed by the Judge to reflect the Applicant’s guilty plea was fully justified

Ground 3

14.The Applicant sought leave under section 83V of the Criminal Procedure Ordinance to adduce fresh evidence in support of the 3^rd ground of appeal.  He has filed an affirmation in which he gives an account of the events of that day.  In it he claims that he had no intention to use the knife against any person and only carried it to protect himself from any wild dogs he came across.  That he did not believe that the two men who confronted him were police officers, this notwithstanding that one of them identified himself as a police officer.  And that when he saw a uniformed police officer he put the knife down and surrendered.  

15.The contents of Applicant’s affirmation are inconsistent with his statement under caution, which formed part of the agreed facts.  In this he admitted taking a screwdriver and a knife from the house he was hiding in to the church.  He made no mention that he carried the knife to protect himself from wild dogs.  The contents of the affirmation are also inconsistent with the instructions the Applicant gave his solicitor.  Before plea, on a copy of the District Court charge sheet, he had written and signed against each of the charges he pleaded guilty to an endorsement to the effect that he admitted those charges.  He had also written and signed a similar endorsement on a copy of the summary of facts, and in addition had written and signed a memorandum to the same effect.

16.We saw no basis on which we should admit this new material.  There is nothing in the affirmation that, had it been put forward in mitigation, would have reflected in his favour and resulted in him receiving lesser sentences on the 1^st and 3^rd charges.  We are satisfied that his solicitor said all that could be said on the Applicant’s behalf about the circumstances of the case.

Decision

17.The application for leave to appeal against the sentences on the 1^st and 3^rd charges is without merit and is dismissed.

Mr Kevin Zervos, SC, SADPP of Department of Justice, for the Respondent

Mr Maurice Peter Tracy, instructed by Messrs Tai, Tang & Chong, for the Applicant