HKSAR v. Y Eung Kwok-sang

CACC 4/2006

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 4 OF 2006

(On Appeal From District Court Criminal Case No. 1049 of 2005)

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BETWEEN

Before : Hon Woo VP and Cheung JA in Court

Date of Hearing : 7 April 2006

Date of Judgment: 7 April 2006

Date of Reasons for Judgment : 13 April 2006

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REASONS FOR JUDGMENT

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Hon Cheung JA (giving reasons for judgment of the court) :

1.These are the reasons for our decision given on 7 April 2006, when we dismissed the application for leave to appeal against the sentence imposed by HH Judge Whaley.

The sentence

2.The applicant pleaded guilty to a charge of burglary.  The judge adopted a starting point of 2½ years, reduced it by one-third because of the guilty plea.  He gave a further two months' deduction on the basis that the crime committed by the applicant was purely opportunistic and the property has all been recovered and taking on trust the applicant's expression of remorse and promise not to commit any crime again.  A final sentence of 18 months' imprisonment was imposed. 

The facts

3.The prosecution evidence revealed that PW1 and PW2 together with other workers were carrying out renovation work at a domestic premises in Sheung Shui.  At noon time they left the premises for lunch.  PW1 left his rucksack in the premises together with the tools of PW1 and PW2.  When they returned to the premises half an hour later they saw the defendant carrying the rucksack.  When PW1 asked him why he had taken the rucksack the applicant immediately put it on the floor and left.  Eventually, the applicant was caught and inside the rucksack were two electric drills which had been left in the premises. 

4.The defendant admitted under caution to the police that he had gone into the premises to steal the two electric drills and the rucksack.  In mitigation it was submitted by defence counsel that the applicant went to the premises to look for work.  When he arrived he found nobody there.  He saw the rucksack and the tools lying around and out of greed he succumbed to the temptation and stole the articles.

5.The judge took the view that although the burglary took place in domestic premises, the premises and those in the neighbourhood were not occupied as residence, and thus he treated this case as a non-domestic burglary.

The starting point

6.The 2½ years' starting point for burglary of non-domestic premises is adopted where there are elements of planning for the burglary.  Where the case involved an opportunistic burglary, for example, that a burglar entered into an open premises and stole the things there, the starting point can be adjusted downwards, see : HKSAR v. Sim Ka Wing [洗家榮（譯音）] CACC 450/2000.  This Court (Stuart-Moore VP, McMahon and Lunn JJ) in HKSAR v. Cheung To Ming (張道明) used a starting point of 18 months where an applicant entered the kitchen of a premises, stole two packages of noodles in the kitchen and consumed them before he left.  The defendant's case was that the door of the kitchen was left open.  As was recognised in Cheung To Ming, the facts of the case were rather unusual.

Adjustments had been given

7.This case was also concerned with an opportunistic burglary.  Although the judge did not adopt a lower starting point than the usual 2½ years, he had in fact given a discount to the applicant after allowing the one-third discount for the guilty plea.  He gave a further two months' deduction.  Looking at the matter from another angle a 18 months' imprisonment on a guilty plea is based on a starting point of 27 months.  We do not consider that a sentence of 18 months imprisonment is manifestly excessive which will justify a further reduction by us. 

8.Although the applicant has a bad record including six charges of burglary and four other charges of theft and theft-related offences, the last conviction was in 1987; that means he had been out of trouble for some 16 years since he was released from prison.  In these circumstances we disagreed with Mr. Poon's submission that the sentence should not be interfered on the basis that the court is entitled to enhance the sentence because of the previous convictions of the applicant by reference to the case of HKSAR v. Chan Pui Chi [陳培知（譯音）] (1999) 2 HKLRD 830.  The judge certainly had not done so.  The case can simply be decided on the basis that even without taking into account the previous bad record of the applicant the 18 months' imprisonment is not a manifestly excessive sentence. 

Conclusion

9.Accordingly, the application for leave to appeal is dismissed.

Mr. Jackson Poon, SGC of Department of Justice, for the Respondent

Applicant, in person, present