HKSAR v. Lui Yuen Shun
Read the full judgment text of CACC 322/2006 on BabelCite. This Court of Appeal judgment was delivered on 30 January 2007 before Stuart-Moore Acting CJHC, McMahon JA, Lunn JA.
Criminal law – burglary – sentencing – appeal against sentence – Theft Ordinance (Cap. 210) s.11(1)(a) and (4) – two counts of burglary committed within four days by deceiving young children to gain entry to domestic premises – applicant pleaded guilty – bad criminal record including five previous burglary offences – whether sentencing judge erred by not treating absence of forced entry, absence of violence, and absence of property taken as mitigating factors – whether sentencing judge erred in imposing wholly consecutive sentences without considering totality – starting point 45 months for each offence with one-third guilty plea discount yielding 30 months each, ordered wholly consecutively, total five years – appeal allowed in part – absence of violence and of property taken carry no separate mitigating weight for burglary – non-forced entry obtained by planned deception of children is no less culpable – offence complete upon entry with intent to steal – consecutive sentences may be appropriate for separate offences of a similar nature against different victims at different times, but principle in AG v Lui Kam Chi and R v Tong Hoi-fung does not dispense with the requirement to consider totality – failure to consider totality was an error of principle and a five-year totality was manifestly excessive – one year of the sentences ordered to be served concurrently, final total four years' imprisonment.
Legal issues: Whether sentencing judge erred by failing to take into account alleged mitigating factors · Whether sentencing judge erred in imposing wholly consecutive sentences
Outcome: Appeal allowed in part; order for wholly consecutive sentences set aside and one year of the sentences directed to be served concurrently, reducing the totality from five years to four years' imprisonment.
Cited by 8 cases · Cites 2 cases
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CACC322/2006 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF APPEAL CRIMINAL APPEAL NO. 322 OF 2006 (ON APPEAL FROM DCCC 15 OF 2006) --------------------- BETWEEN
---------------------- Before : Hon Stuart-Moore Acting CJHC, McMahon and Lunn JJ in Court Date of Hearing : 30 January 2007 Date of Judgment : 30 January 2007 ------------------------- J U D G M E N T ------------------------- McMahon J (giving the judgment of the Court) : 1.The 31-year-old applicant was convicted by Deputy Judge Yau in the District Court on his own plea of two offences of burglary, contrary to section 11(1)(a) and (4) of the Theft Ordinance, Cap. 210. He was sentenced to 30 months’ imprisonment for each offence, the sentences to be served consecutively. That resulted in a totality of sentence of five years’ imprisonment. He now appeals those sentences. 2.The facts of the first offence were that in mid-afternoon on 20 October 2005, the applicant gained entry to premises in Lei Muk Shue Estate in Tsuen Wan by posing as a workman who wished to investigate a lack of water supply to the premises’ kitchen. As the only occupant of the premises at the time was a six-year-old boy, the applicant succeeded in gaining entry with that subterfuge. Once inside he obtained a screwdriver and attempted to pry open a bedroom door but failed. In the meantime, the boy’s sister returned home. After failing to open the door, the applicant left. 3.Three days later at Tsz Lok Estate in Kowloon in the early evening, the applicant gained entry to other premises by representing to the ten-year-old girl who was the sole occupant at the time that he wished to borrow some tools. A few minutes after the applicant entered the premises, the girl’s mother came home. The applicant told her that he was a construction worker borrowing tools, and when the mother asked for some proof of his identity, wrote down his correct name and identity card number. However, when she asked him to go with her to the management office, the applicant fled. 4.Subsequently the applicant was stopped during a routine police identity check and was arrested when his name and identity card number were confirmed to match the particulars he had left behind on the occasion of the second offence. GROUNDS OF APPEAL 5.Mr Chau for the applicant advances two grounds of appeal which can be summarized as follows :
6.No complaint is made by Mr Chau of the enhanced starting point of sentence of 45 months’ imprisonment taken by the judge in respect of each offence, and he is right not to do so. The applicant has a bad criminal record with five previous burglary offences together with other property related offences. First ground 7.The only mitigation the judge allowed in respect of each offence was the applicant’s plea of guilty. 8.Mr Chau argues that there were three mitigating factors which the judge should have taken into account and did not. They were that there was no forced entry of the premises; that no violence was used and no property was taken. We might say immediately that while Mr Chau relies upon these as mitigating factors, they should more rightly be regarded as part of the actus reus of the offence and as such, if they were to be taken into account, relevant only to the starting point of sentence. 9.In any event the fact that no violence was used cannot normally reduce sentence for a burglary offence. If violence had been used by the applicant, then that would have been taken into account as an aggravating factor or offences of a different and more serious nature would have been committed and charged. No credit could properly have been given to the applicant by the judge for this aspect of his offences. 10.It is true there was no forced entry of the premises, but the circumstances of the present offences are quite different from cases where an interloper gains entry to premises by opportunistically walking through an open door. The applicant gained entry by deceiving the occupants, on both occasions young children whose parents were absent. 11.In our judgment, whether entry is gained to premises by sliding open a door or window or by a planned deception makes little difference. We note in any event that on the occasion of the first offence, the applicant had tried to pry open a door within the premises. 12.The third matter relied upon is the fact the applicant took no property. In our view that carries no weight. Whether or not a burglar takes property is a matter of pure chance. It depends entirely upon whether he finds something which he thinks worth taking. Of course if property of considerable value is taken, that may enhance sentence. But the offence in section 11(1)(a) and (4) is complete once the burglar enters the premises with the requisite intent to steal. 13.There is no merit in this first ground of appeal. Second ground 14.Mr Chau’s complaint is that the judge failed to properly consider totality. The judge, in sentencing, said this :
15.The court in Lui Kam Chi was not suggesting that consecutive sentences would be imposed as a matter of course, that is plain from that part of the judgment of Barker JA cited from Tong Hui Fong. All that was meant was that in principle separate offences attract consecutive sentences. But that does not excuse a court from the final step when imposing separate sentences for multiple offences, which is a consideration of the appropriate totality of sentence. 16.In the present case there was apparently no consideration given by the judge as to whether a totality of five years’ imprisonment properly reflected the overall culpability of the applicant. That was an error of principle. In our view, careful consideration should be given to the totality of sentence when the individual sentences themselves are enhanced. Good reason should exist before such sentences are ordered to run wholly consecutively, lest there be an element of double punishment in the total sentence. CONCLUSION 17.In the present case we think a totality of five years’ imprisonment also to be manifestly excessive. It represents a global starting point of seven and a half years’ imprisonment and we think that some part of the sentences should have been ordered to be served concurrently. Accordingly we treat this application as the hearing of the appeal and allow the appeal to the extent that we set aside the judge’s order that the sentences be served wholly consecutively and order that one year of the sentences be served concurrently. That results in a totality of four years’ imprisonment.
Ms Grace Chan, SGC of the Department of Justice, for HKSAR Mr Phil Chau, instructed by Messrs Li & Partners, assigned by the Director of Legal Aid, for the Applicant |
Cases cited in this judgment