HKSAR v. Fan Kit Hung

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 1^st 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 :

“        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 instruments or equipment; (2) the offence is committed by two or more people; (3) the offence targets 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 convictions of a similar nature, and (6) the offender commits multiple offences.”

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 1^st charged offence be served wholly consecutively to the other sentences and that additionally 8 months of the sentence imposed in respect of the 3^rd 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