HKSAR v. Chau Lap Pui

CACC 358/2006

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

criminal APPEAL NO. 358 OF 2006

(ON APPEAL FROM DCCC NO. 589 of 2006)

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BETWEEN

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Before:   Hon Stuart-Moore VP and Lunn J

Date of Hearing: 13 February 2007

Date of Judgment: 13 February 2007

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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):

Background

1.On 10 August 2006, the applicant, aged 29, pleaded guilty in the District Court to three charges for which he was sentenced by Deputy Judge Ada Yim to a total of 3 years’ imprisonment.

2.The 1^st charge related to the applicant’s possession of a bottle of pepper spray on 26 May 2006 without a licence, contrary to section 13 of the Firearms and Ammunition Ordinance, Cap. 238.  When arrested, the applicant said that he had been given the bottle by a friend in Shenzhen a month earlier for self-defence and that he had never used it.  He was released on police bail at 11.30 pm on 27 May 2006 pending a scientific examination of the bottle’s contents which in due course established that the bottle contained CS gas.  Dr Lee Wing-man, who conducted the examination, found that “on pressing the operating button of the canister, the nozzle of the bottle can discharge a light yellow liquid containing ‘CS’ which is a potent eye, throat and skin irritant.  ‘CS’ is an active lachrymatory ingredient in some chemical protection sprays”.

3.After the applicant’s return home on about 27 May 2006, the applicant stole from his father.  The somewhat unusual circumstances of the 2^nd charge of theft are described in the Summary of Facts as follows:

“… D’s father, Chow Chung-tao (PW3, aged 61) opened the door for D who asked PW3 to give him $100 [as] the police bail was $500 and D had only paid $400.  PW3 did not believe in D and refused.  PW3 then went to sleep in his bedroom.  Fearing that D might steal his money, PW3 placed his wallet and a mobile phone inside a pillow and PW3 rests his head on it.  At 0645 hours in the next morning, PW3 woke up and found that the pillow case on which he slept was cut and D had left home.  PW3 checked the pillow case and found that $310 in his wallet and a mobile phone were missing.  PW3 also found a sheet of paper on which D had written, ‘Father, sorry.  Just treat it as if you have not given birth [to] a son.  I am venturing my life this time.’  PW3 thought that the missing properties were stolen by D and made a report to the police.

6.       Under caution, D admitted that he had stolen about $300 and a mobile phone from his father by cutting the pillow case with a pair of scissors.  He had sold the mobile phone for $250 to a hawker in Tin Shui Wai and spent all the money.” (Appeal bundle p. 5-6)

4.The 3^rd charge admitted by the applicant was a burglary of shop premises committed on 31 May 2006.  The applicant was caught in the act by a security officer and he fled having stolen a small amount of cash and 5 mobile telephone batteries.  He was arrested and the stolen property was recovered together with a glove, 2 clippers and a chisel which the applicant later admitted were borrowed from a friend with intent to steal.

Sentencing

5.When sentencing, the judge said in relation to the mitigation she had heard on the 1^st charge:

“… The defence submitted in mitigation that the defendant borrowed $3000 from a person and, not able to repay, that person always accompanied by a group, and he worried that he may be assaulted, yet the defence admitted that he was never assaulted by that person.  I consider that there is no evidence that he was subjected to any threat to his personal safety, I am sceptical about the alleged use for self-defence.  I consider that there is a considerable risk that the object be used against another person without reasonable cause.” (Appeal bundle pp. 9-10)

6.The judge, without apparent reference to any previous authority, said that the appropriate starting point for sentence on the 1^st charge would be 30 months, reduced to 20 months for the guilty plea.  On the 2^nd charge of theft, the judge adopted a 12-month starting point which was reduced to 8 months to reflect the plea.  In regard to the 3^rd charge, a starting point of 30 months was taken as this was a burglary of non-domestic premises.  This was then also reduced by a third, making 20 months.

7.The judge referred to the applicant as having been on police bail when the last two offences were committed and she mentioned also his record of: “9 previous convictions, 5 related to theft”.  In fact, the applicant had appeared before the courts on seven earlier occasions, four of which were in respect of theft involving a total of five such offences.  We observe also that on five of the occasions the applicant has been before the courts, orders for detention at a Drug Addiction Treatment Centre (DATC) have been made although at least one of those orders was made when the applicant would already have been undergoing treatment at the DATC.

8.Finally, the judge plainly took totality into account as she ordered only 2 months of the 8-month sentence on the 2^nd charge and 14 months of the 20-month sentence on the 3^rd charge to run consecutively, making 3 years’ imprisonment in all.

The application

9.The applicant now applies for leave to appeal.  The application is principally aimed at the sentence of 20 months’ imprisonment on the 1^st charge but a complaint is also made in respect of the overall length of the sentence.

10.The first two grounds raised by Mr Andy Hung for the applicant are straightforward and, looked at in isolation, are impeccable as Ms Anna Lai for the respondent has most responsibly been the first to recognise.

11.The first ground was that the sentence for possession of the pepper spray, in circumstances where there was no evidence to suggest that the applicant was going to use it for the commission of a crime, was manifestly excessive.

12.The argument can be put very shortly.  In simple terms, it was submitted that carrying a pepper spray is obviously less serious than carrying a stun gun.  There have been numerous cases which have come before the Court of Appeal in regard to stun guns where there has been no suggestion that they were being carried for an illegal purpose.  In HKSAR v Li Hung-kwan [2003] 1 HKLRD 204, for example, a number of decisions falling within this category were reviewed before this court concluded, in the absence of guidelines, that a starting point after trial of about 20 months was appropriate.

13.All things considered, it was argued that the starting point for possession of a pepper spray should certainly be less than for a stun gun which is a more harmful weapon.  Again, there are no guidelines for sentence in such cases.  Although we were referred to HKSAR v Wong Hok-hang & Ors, CACC 255/2004, we did not derive much benefit from the decision as this court was there only concerned with conviction.  Judge Richard Day had imposed a 9-month sentence in that case for possession of a pepper spray where the inference was properly drawn that it was to be used for the purpose of robbery.

14.With HKSAR v Wong Hok-hang & Ors in mind, Mr Hung suggested that a starting point of less than 9 months in a case such as the present one would be appropriate as the circumstances do not reveal the possession of the CS spray for some illicit purpose such as robbery.  We consider, in the light of everything we have heard, that a starting point of 6 months would have been appropriate in the present case, reduced to 4 months for the guilty plea.  Ms Lai, for the respondent, did not seek to suggest otherwise.

15.The second ground of appeal was again rightly met with no opposition from the respondent.  This ground alleged that when the judge rejected the applicant’s reason for having the CS spray in his possession, she should not have done this before giving the applicant an opportunity to explain himself in a Newton hearing.  Ms Lai entirely agreed with Mr Hung’s contention that, in the absence of such a hearing, the sentence for this offence should have been approached on a basis which was most favourable to the applicant unless, we should add, the mitigation was so far-fetched that the judge could safely reject it without the need for a Newton hearing.  Here, the applicant’s story was not so obviously made up that it could simply be rejected.  However, as we have already indicated that the sentence on this charge should be reduced to 4 months’ imprisonment, this point has now been rendered academic.

16.The two final grounds of appeal were directed at the overall length of sentence.  Mr Hung submitted that the applicant’s 36-month term of imprisonment after pleading guilty represented a starting point of 54 months after trial.  Having regard to the applicant’s criminality, this was, he suggested, manifestly excessive and exposed a failure on the judge’s part to pay proper regard to the totality of the sentence she had decided to impose.

17.As to this ground, Ms Lai submitted that while there had, with respect, been two errors in the judge’s approach to sentencing on the 1^st charge, nevertheless the overall sentence imposed was not inappropriate.  The applicant was, as Ms Lai pointed out, a 29-year-old drug addict who had been released less than four months before the present offences were committed and, because of this, he was then still under the supervision of the Correctional Services Department.  Further, as the last two offences were committed whilst on bail and were entirely separate from each other and from the 1^st charge, they should, in principle, have resulted in wholly consecutive sentences, subject always to totality.  Ms Lai also suggested that in order to achieve the same 3-year sentence passed by the judge, the applicant’s record justified the imposition of enhanced sentences on some of the charges following this court’s decision in HKSAR v Chan Pui-chi [1999] 2 HKLRD 830.

18.We have found ourselves in general agreement with Ms Lai’s submissions although we are satisfied that it would be quite wrong to attempt to neutralise the effect of our decision by enhancing two perfectly proper starting points on charges 2 and 3 in order to compensate for the flawed starting point on the 1^st charge.  Nevertheless, while leave must be granted for the reasons we have given, this will provide only limited comfort to the applicant.

Conclusion

19.Treating the hearing as the appeal, we reduce the sentence on the 1^st charge from 20 months to 4 months’ imprisonment.  However, on the 2^nd charge which was committed on bail, while maintaining the 8-month sentence imposed by the judge, we shall vary her order that only 2 months should be served consecutively.  We order instead that the whole of this sentence should be served consecutively.  Similarly, with regard to the 3^rd charge which was a further offence committed on bail, we shall maintain the 20-month sentence imposed by the judge but quash the judge’s order that only 14 months should run consecutively and we order that the whole of this term should be consecutive to the other sentences.  We can see no justification for making any part of these sentences concurrent to each other.

20.The total sentence to be served by the applicant is, therefore 32 months, a reduction of 4 months from his original sentence.  To this extent, the appeal is allowed.

Ms Anna Y K Lai, SGC, of the Department of Justice, for the Respondent.

Mr Andy Hung, instructed by Messrs Kong & Tang, assigned by Director of Legal Aid, for the Applicant.