HKSAR v. Fan Kit Hung
Read the full judgment text of CACC 62/2009 on BabelCite. This Court of Appeal judgment was delivered on 14 July 2009 before Hartmann JA, McMahon J.
Criminal law – sentencing – burglary of non-domestic premises – multiple offences – totality of sentence – consecutive sentences – professional burglar – guilty plea discount – appeal against sentence. The applicant pleaded guilty in the District Court to 13 charges of burglary of non-domestic premises committed over a four-month period in 2008, obtaining $130,825 in cash plus clothing and other items, none of which was recovered. Most offences occurred at night when the premises were empty; in the first charge the applicant was seen taking $75,000 from a cash drawer and escaped. The sentencing judge adopted a starting point of 30 months per offence, reduced to 20 months for the guilty pleas, and ordered the first three sentences wholly consecutive with one year of the fourth consecutive, yielding a total of 6 years' imprisonment, reflecting a notional starting point of 9 years. On appeal, the applicant contended that the totality was manifestly excessive. The Court of Appeal reviewed authorities including Secretary for Justice v Chan Tsz Lung (CAAR 4/1998), HKSAR v Xie Guohong (CACC 384/2003), HKSAR v Lui Cho Yiu (CACC 81/2004) and HKSAR v Cheng Wai Kai (CACC 338/2007), and observed that, although there is increasing recognition of the need for deterrent sentences for professional or serial burglars and that aggravating factors such as careful planning, use of accomplices, substantial targets, professional status, prior convictions, multiple offences and substantial damage to premises can justify a notional starting point above 5 years, the appropriate starting point must reflect the particular circumstances. Held, the notional starting point of 9 years was manifestly excessive in circumstances where, although 13 offences were committed, the losses were not of the magnitude in Xie Guohong (about $470,000), there was no significant damage to premises as in Cheng Wai Kai, and the applicant acted without accomplices, even allowing for his status as a professional and the very high number of offences. A more appropriate notional starting point was 6 years, yielding a totality of 4 years after the guilty plea discount. Appeal allowed; individual sentences not disturbed, but the 1st charged offence ordered to be served wholly consecutively and 8 months of the 3rd charged offence to be served consecutively to all other sentences, giving a total of 4 years' imprisonment.
Legal issues: Whether totality of 6 years' imprisonment for 13 burglaries of non-domestic premises was manifestly excessive
Outcome: Appeal allowed; total sentence reduced from 6 years' imprisonment to 4 years' imprisonment.
Cited by 61 cases
|
CACC62/2009 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF APPEAL CRIMINAL APPEAL NO. 62 OF 2009 (ON APPEAL FROM DCCC 1027 AND 1124 OF 2008) --------------------- BETWEEN
---------------------- Before : Hon Hartmann JA and McMahon J in Court Date of Hearing : 14 July 2009 Date of Judgment : 14 July 2009 ------------------------ JUDGMENT ------------------------ McMahon J (giving the judgment of the Court) : 1.The applicant pleaded guilty, before Deputy Judge E. Yip in the District Court, to 13 charges of burglary of non-domestic premises. He was sentenced to a totality of 6 years’ imprisonment and now appeals that sentence. 2.The facts of the case were that over a four-month period from May to September in 2008 the applicant obtained a total of $130,825 in cash, as well as clothing and other items, from various shops at locations in the New Territories, Kowloon and Hong Kong, none of which was recovered. Most of the burglaries occurred at night when the victimised premises were empty. The exception concerned the offence the subject of the 1st charge when the applicant was seen by a staff of the premises taking $75,000 from the shop’s cash drawer. The staff member chased the applicant who, however, successfully escaped with the money. 3.The judge adopted a starting point of 30 months’ imprisonment for each of the 13 offences. He reduced that to a sentence of 20 months’ imprisonment for each offence to reflect the applicant’s pleas of guilty. No issue is taken with that approach by Mr Acton-Bond for the applicant. 4.The judge then, however, ordered that the sentences imposed in respect of the first three offences be served wholly consecutively to each other, and that one year of the sentence imposed in respect of the fourth offence also be served consecutively to the other offences. All other sentences were to be concurrent. That resulted in a totality of sentence of 6 years’ imprisonment. Mr Acton-Bond’s primary complaint is that this totality reflects a notional starting point of 9 years’ imprisonment which he says is manifestly excessive. 5.We have been referred to a large number of cases involving multiple burglaries of non-domestic premises commencing with Secretary for Justice v. Chan Tsz Lung (unreported), CAAR4/1998, a case particularly relied upon by Mr Acton-Bond, which involved 15 charges of burglary and one charge of possession of an offensive weapon. This court (differently constituted) allowed the application for review and in doing so approved, in respect of the burglary offences, a notional starting point of 5 years’ imprisonment reduced, because of the pleas, to a totality of 46 months’ imprisonment (increased by a further 6 months for the weapons offence). 6.However, as we understand that decision, the court in Chan Tsz Lung was not purporting to place an upper limit on the totality of sentence for multiple burglary offences. That quite simply could not be so given the variation in circumstances and aggravating factors possible. 7.In subsequent cases involving multiple offences of burglary of non-domestic premises, which raised questions concerning the appropriate totality of sentence, similar or even higher notional starting points have been approved by this court in circumstances involving far fewer offences : see HKSAR v. Xie Guohong (unreported), CACC384/2003; HKSAR v. Lui Cho Yiu (unreported), CACC81/2004 and HKSAR v. Cheng Wai Kai (unreported), CACC338/2007. From those cases and others we were referred to during argument it is apparent that there is an increasing appreciation of the need for deterrent sentences for offenders who are professional or serial burglars. 8.So far as sentence is concerned, much will depend on the aggravating circumstances of the individual case. However where the facts reveal the offender to be a professional burglar then that is plainly an aggravating factor and, where several offences are also involved, the totality of sentence would, depending on other factors, often reflect a notional starting point of more than 5 years’ imprisonment. 9.Those other factors were illustrated in Cheng Wai Kai by Yeung JA at paragraph 15 where he said :
10.To that we would add that where substantial damage is done to the victimised premises, or to things in it, in the course of the burglary then that also will be an aggravating factor. 11.In the present case, although 13 separate offences were involved, the loss of property was not of the same magnitude as that in Xie Guohong which involved some $470,000. Nor was there any great damage to the victimised premises, unlike that which occurred in Cheng Wai Kai, and in the present case the applicant had no accomplice in his offences. Nevertheless the number of offences was very high and there is no doubt that the applicant is a professional, though we note he has no previous convictions for burglary but one only for robbery. 12.Taking all the circumstances of the case into account we are satisfied that the notional starting point of sentence of 9 years’ imprisonment, which the total sentence of 6 years’ imprisonment reflects, was manifestly excessive. We are of the view that in the circumstances of this case a more appropriate starting point, given the large number of offences involved was one of 6 years’ imprisonment. That would properly result in a totality of 4 years’ imprisonment. 13.To achieve that we intend not to disturb the individual sentences, but to order that the sentence imposed in respect of the 1st charged offence be served wholly consecutively to the other sentences and that additionally 8 months of the sentence imposed in respect of the 3rd charged offence be served consecutively to all other sentences. 14.Accordingly, we allow the application, treat the hearing as the appeal and order accordingly; that results in a total sentence of 4 years’ imprisonment.
Ms Anthea Pang, SADPP of the Department of Justice, for the Respondent Mr Jonathan Acton-Bond, assigned by the Legal Aid Department, for the Applicant |
Other judgments that cite this case