HKSAR v. Cheng Wai Kai

CACC 338 /2007

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 338 OF 2007

(ON APPEAL FROM DCCC NO. 538 of 2007)

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CACC 339 /2007

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINALAPPEAL NO. 339 OF 2007

(ON APPEAL FROM DCCC NO. 682 of 2007)

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Before: Hon Yeung JA and Hon McMahon J in Court

Date of Hearing:   29 May 2008

Date of Judgment:  29 May 2008

Date of Handing Down Reasons for Judgment:  11 June 2008

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REASONS FOR JUDGMENT

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Hon Yeung JA (giving the reasons for judgment of the Court):

Introduction

1.The appellant, Cheng Wai Kai, having been granted leave, appealed against sentence. We dismissed his appeal on 29 May 2008 and indicated that we would hand down our reasons in due course, and this we now do.

2.The appellant was involved in two separate cases, namely DCCC 682/2007 and DCCC 538/2007, in which he was respectively charged with three counts of burglary, and one count of burglary and one count of attempt burglary.

3.The appellant pleaded guilty to all five charges before Deputy Judge Thomas (“the judge”) in the District Court.

4.The judge, having sentenced the appellant to 20 months’ imprisonment in respect of each of the five charges and ordered the sentences in each of the two cases to run concurrently, ordered that the sentences in DCCC 682/2007 should run consecutively to the sentences in DCCC 538/2007. The total sentence imposed on the appellant is 40 months’ imprisonment.

The Facts

DCCC 682/2007

5.On 18 January 2007, the appellant broke into three adjacent premises in Mongkok. Having failed to find anything to steal in the first premises, the appellant entered the 2^nd premises and stole $500. The appellant then entered the 3^rd premises by breaking open the common wall and stole $130,000 worth of dried food and other valuables. The appellant claimed to have sold some of the stolen items for about $13,000 to someone from the Mainland.

DCCC 538/2007

6.On 12 May 2007, the appellant broke into an empty unit in North Point in order to break into a watch shop next door. The watch shop owner was alerted and he made a report to the police, leading to the appellant’s arrest and prosecution.

The Appellant’s Background

7.The appellant was born in 1960, divorced and had a son. He claimed to have worked as a decoration worker, but at the time of the offences, was unemployed. The appellant said he was unable to obtain comprehensive social security allowance because he refused to attend various workshops and courses required for recipients of CSSA.

8.The appellant was a drug addict had had nine previous convictions, mostly drug-related, with three for theft. There was, however, no previous conviction of burglary.

The Judge’s Approach

9.The judge, pointing out the appellant’s previous convictions and emphasizing those involving dishonesty, took the view that the only mitigating factor was the guilty pleas.

10.The judge adopted a starting point of 30 months’ imprisonment for each of the five charges and then reduced the starting point by one-third to 20 months on account of the guilty pleas.

11.The judge opined that “the activities on each occasion represented one course of action”, and therefore ordered the sentences in each case to run concurrently but consecutively to one another, making a total sentence of 40 months’ imprisonment.

Grounds of Appeal and the Respondent’s Position

12.The appellant submitted that the total sentence of 40 months was manifestly excessive. The appellant emphasized that he had decided to plead guilty at the outset and had asked for the two cases to be dealt with together. He suggested that the sentences in the two cases should at least be partly concurrent.

13.Mr Graham Goodman, on behalf of the respondent, submitted that the total sentence, far from being manifestly excessive, was in fact inadequate. Mr Goodman suggested that “to reflect the criminality in multiple offences of burglary”, the total sentence should be increased to 52 months.

Discussion

14.The proper starting point for sentence in a case of burglary of non-domestic premises is 30 months’ imprisonment (See R v Wong Man unrep CACC 372/1992).

15.The starting point can be adjusted upwards if there are aggravating circumstances such as; (1) the offence is carefully planned and skilfully executed involving the use of heavy instrument or equipment; (2) the offence is committed by two or more people; (3) the offence targets at substantial premises and involves substantial properties; (4) the offender is a professional burglar and not just an opportunist; (5) the offender has previous convictions, particularly previous conviction of similar nature, and (6) the offender commits multiple offences.

16.If the offences were committed in different premises against different victims on different dates, consecutive sentences should be imposed (see AG v Lui Kam Chi [1993] 1 HKC 215).

17.In AG v Cheung Yui-man unrep CAAR 16/1985, the accused with previous convictions, sometimes alone and sometimes with another, over a period of about 8 months, broke into six shops, including Lane Crawford, and stole properties valued at almost $1 million. The Court of Appeal considered a starting point of 6 years appropriate although at the end, only 5 years was adopted on the basis that it was a sentence review case.

18.In R v Ko Chi Yau unrep CACC 640/1983, the accused was convicted of three counts of burglary. Prior to that, the accused had been sentenced to 3 ½ years’ imprisonment for similar offences and 18 months’ imprisonment for handling stolen goods. A total starting point of 7 years was reduced to 4 years on appeal.

19.In HKSAR v Lui Cho Yiu CACC 81/2004, the defendant, who had many previous convictions including three for burglary, was convicted of two charges of burglary in which a number of burglars used drilling equipment to try to open a safe in a money exchange business. The Court of Appeal approved a starting point of five years.

20.The appellant committed, on two separate occasions, a total of five burglaries or attempted burglary. The offences were carefully planned with the use of equipment to break open a brick wall, and substantial properties valued at over $130,000 were stolen.

21.The appellant was a professional burglar although he had no previous conviction of burglary. The appellant also had many previous convictions, including three for theft. These are further aggravating factors.

22.The starting point for each of the charges against the appellant is clearly right. The judge was correct to order the sentences in the two cases to run consecutively.

23.The total starting point adopted by the judge in effect is 5 years. Such a starting point, though not a lenient one, is neither manifestly excessive nor wrong in principle.

24.The appeal against sentence was therefore dismissed.

Mr Graham D Goodman, SGC of the Department of Justice for the Respondent.

Appellant:  In person.