HKSAR v. Lui Yuen Shun

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)

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BETWEEN

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Before : Hon Stuart-Moore Acting CJHC, McMahon and Lunn JJ in Court

Date of Hearing : 30 January 2007

Date of Judgment : 30 January 2007

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J U D G M E N T

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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 :

(1)     that the judge failed to take into account certain factors in mitigation; and

(2)     that the judge erred in imposing wholly consecutive sentences.

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 :

“19.   In the case of AG v Lui Kam Chi [1993] 1 HKC 215, at 217, the following was stated:

‘In relation to multiple offences, the proper approach… was stated by Barker JA in R v Tong Hoi-fung [1988] 1 HKLR 610, as follows:

“This court has said time and time again that where there is more than one offence of a similar nature committed at different times, it is right for the court to award a higher sentence than if there had been only one offence.”

The offences were committed if different premises against different victims on different dates.  Clearly they cannot be regarded as part of the same transaction.  We can see no justification for concurrent sentences.’

20.    The rationale in that case is fully applicable to our present one.  The defendant committed the 2 offences within the space of 4 days on 2 different premises, preying on the innocence of young children in gaining entrance on both occasions, making him all the more culpable.

Sentence

21.   Taking into consideration all the above factors, I will adopt a starting point of 45 months for both offences, giving the defendant the full one third discount for his guilty pleas, reducing them each to 30 months’ imprisonment.  Applying AG v Lui Kam Chi, I will order that the sentences be served wholly consecutively, sentencing the defendant to a total of 5 years’ imprisonment.”

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