HKSAR v. Chan Kwong Chun

CACC299/2008

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO.299 OF 2008

(ON APPEAL FROM DCCC 631 OF 2008)

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BETWEEN

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Before : Hon Stuart-Moore VP, Hartmann JA and Burrell J in Court

Date of Hearing : 4 March 2009

Date of Judgment : 4 March 2009

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J U D G M E N T

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Burrell J (giving the judgment of the Court) :

1.On 8 June 2008 the applicant was caught red-handed whilst committing a burglary of commercial premises, the Keung Sang Dispensary in Yaumatei, with a co-defendant.  The offence was committed at approximately 4 o’clock in the morning.  The applicant was performing the role of a lookout.  He ran when the police approached but was soon caught and said on being arrested that he had never committed a burglary before. 

2.Both pleaded guilty before Deputy District Judge Wahab on 27 August 2008.  Both had very bad records for offences of burglary.  The judge sentenced them in the same way.  He increased the usual starting point for offences of this type from 2½ years to 3½ years.  He then gave a full one third discount for the pleas of guilty which reduced the sentence to 28 months, and then discounted a further 2 months for “co-operation with the police”.  The co-operation was described by the judge as “making certain admissions”. 

3.The applicant now seeks leave to appeal against the sentence of 26 months.  The primary complaint against the sentence is that the enhancement from 2½ years to 3½ years, being an increase of 40%, was too great and therefore the final result was manifestly excessive and wrong in principle. 

4.Mr Hoosen on the applicant’s behalf has referred the court to three authorities in which the starting points were enhanced for similar reasons and then draws comparison with this case in support of his submission that the increase should have been less.  We glean no particular assistance from such comparisons in this case.  Mr Robert Lee, SC for the respondent, in his written submission invites us to consider the different factual backgrounds in each case and not to place undue weight on arithmetical comparisons. 

5.There is no doubt that the judge in this case was entitled to increase the starting point.  The applicant had a very bad record.  He had been convicted of 11 burglaries and two for going equipped for theft.  On 11 occasions he had been sentenced to imprisonment for terms ranging from 8 months to 3 years.  

6.There is no arithmetic formula for the enhancement of sentences.  It is a matter of judgment for the sentencing judge.  On this occasion it is plain that the judge considered the applicant to be a professional burglar who was a menace to society.  We think he was perfectly entitled to come to this view and make a meaningful increase in the starting point as a deterrent.  An increase of 12 months in all the circumstances was perfectly reasonable.  

7.It is better to look at enhancement in terms of time rather than as a percentage.  For example, an increase of 6 months to 9 months might be acceptable to deter a persistent petty thief, whereas an increase from 6 years to 9 years, where more serious offences are involved, might not be.  It depends on the combination of the nature of the offences and the reasons for the enhancement. 

8.We note that the judge reduced the sentence by a further 2 months “for making certain admissions” after the full one third discount had been applied for his plea of guilty. 

9.We think it should be pointed out that this should not have been done.  Having been caught red-handed the admissions to which the judge referred appeared to add nothing to his admission of guilt in court which entitled him to the one third discount and no more.  Had this extra 2 months discount not been made this court would still not have interfered with a 28 months sentence. 

10.In any event, as Mr Lee points out, the 26 months sentence that was actually passed represents a starting point of 39 months with the usual discount of one third and no more.  That could have achieved by a slightly more modest enhancement of 9 months, from 30 to 39.  So in short, the applicant has no grounds of complaint. 

11.Another approach is to consider the sentence actually passed as a result of the court’s judgment.  Had he not been a professional burglar he would have received 20 months’ imprisonment (30 months less one third).  In the event he has received an extra 6 months.  This we think is entirely proper in all the circumstances. 

12.The application is accordingly dismissed. 

Mr Robert S.K. Lee, SC, SADPP and Ms Olivia Tsang, SPP, of the Department of Justice, for the Respondent

Mr A.A. Hoosen, instructed by Director of Legal Aid, for the Applicant