HKSAR v. Tsang Kai on
Read the full judgment text of CACC 79/2010 on BabelCite. This Court of Appeal judgment was delivered on 21 October 2010 before Tang Ag. CJHC, Barnes J.
Criminal law – burglary – domestic premises – sentencing – appeal – starting point – guilty plea discount – further discount for plea notwithstanding insufficient evidence – totality principle – consecutive sentences. Applicant pleaded guilty to two counts of burglary of domestic premises contrary to section 11(1)(b) and (4), and section 11(1)(a) and (4) of the Theft Ordinance, Cap 210, after committing offences in January and March 2009 in which he stole cash and property, and on one occasion used a crowbar to scare off the flat owner. Whether the sentencing judge should have given a further discount for the applicant's voluntary guilty plea notwithstanding insufficient prosecution evidence – held, yes; sentence was manifestly severe. Whether 19 months of the sentence on Charge 2 running consecutively to Charge 1 was appropriate under the totality principle – held, no; total of 43 months was manifestly excessive. The court follows Secretary for Justice v Tsui Kim Ming Simon, HKSAR v Ng Wing Chung and HKSAR v Hui Chi Tong in holding that an additional discount is warranted where an accused pleads guilty despite a lack of sufficient evidence, as this shows genuine remorse and serves the public interest. Leave to appeal granted; appeal allowed; sentence reduced to 20 months on Charge 1 and 14 months on Charge 2, to run consecutively, for a total of 34 months.
Legal issues: Whether the sentencing judge should have given a further discount for the applicant's voluntary guilty plea despite insufficient prosecution evidence · Whether the 19 months consecutive to Charge 1 was appropriate under the totality principle
Outcome: Leave to appeal granted; appeal allowed; sentence reduced from 43 months to 34 months' imprisonment.
Cited by 53 cases · Cites 1 case
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[English Translation - 英譯本] CACC 79/2010 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF APPEAL CRIMINAL JURISDICTION CRIMINAL APPEAL NO. 79 OF 2010 (ON APPEAL FROM DCCC 1106 OF 2009) __________________ BETWEEN
__________________ Before: Hon. Tang Ag. CJHC and Barnes J Date of Hearing: 21 October 2010 Date of Judgment: 21 October 2010 __________________ JUDGMENT __________________ Barnes J (giving the judgment of the Court): 1.The applicant was charged with three counts of burglary, the first two charges contrary to section 11(1)(b) and (4), Theft Ordinance, Cap. 210, Laws of Hong Kong and the third charge contrary to section 11(1)(a) and (4) of the said Ordinance. The applicant pleaded guilty to the first two charges before Deputy District Judge Sham and was sentenced to 43 months’ imprisonment while the third charge was left on the file. The applicant now seeks leave to appeal against sentence. Admitted facts 2.The facts of the case were that in January and March 2009, the applicant sneaked into the flats in question to steal. 3.In respect of Charge 1, the applicant sneaked into the flat in question around 1 pm on 6th January 2009 to steal. While doing so, he alerted the owner of the flat. The applicant made good his escape. Upon checking, the flat owner confirmed a loss of two hundred dollars in cash and a mobile phone which was worth HK$4,000. 4.In respect of Charge 2, the applicant sneaked into the flat in question on the afternoon of 13th March 2009 to steal. At the time, the owner of the flat was not at home. The applicant stole $8,000 in cash and approximately HK$33,000’s worth of property. The male owner of the flat returned home and found the applicant. He then called the police for assistance. When the applicant left the flat, the male owner of the flat who was waiting outside the flat tried to intercept the applicant, but was scared off by the applicant who was holding a crowbar. The applicant made good his escape. 5.The applicant was subsequently arrested by the police in August when he was stopped for inquiries. Under caution, he admitted having committed the above offences. Background of the applicant 6.The 39-year-old applicant has three criminal convictions, one of which is for the same offence as the ones in the present case. For that offence, the applicant was sentenced to 2½ years’ imprisonment. In mitigation, counsel for the applicant submitted that the applicant was heavily in debt due to unemployment and thus committed the offences in desperation. Reasons for sentence 7.In sentencing, Deputy Judge Sham had considered the applicant’s background and the reasons for committing the offences. This is a case involving domestic premises and the normal starting point for this is 3 years’ imprisonment. The starting point for Charge 1 was one of 3 years. The circumstances of the offence in Charge 2 were aggravated by the fact the applicant pointed a crowbar at the male flat owner to scare him off. The starting point was one of 3½ years. The starting points were reduced to 2 years and 28 months respectively on account of the applicant’s guilty pleas. When considering the totality principle, Deputy Judge Sham referred to HKSAR v Ng Ngai Shan CACC197/2008 and he took the view that 19 months of the sentence imposed on Charge 2 should run consecutively to that on Charge 1, making a total term of 43 months. Grounds of appeal 8.Ms. Karen Cheung, counsel for the applicant, put forward two grounds of appeal:
Respondent’s response 9.Mr. Ira Lui, Senior Public Prosecutor for the Respondent, made a very fair submission in which he conceded that, in the light of the fact that the applicant had twice made good his escape and the owners of the flats concerned could not recognize the applicant, the prosecution would not have been able to prove the applicant’s guilt but for his confession. Mr. Lui also submitted that Deputy Judge Sham did not exercise his discretion to reduce the sentence, but he did not give any reasons for it in his Reasons for Sentence. Mr. Lui was of the view that this court could, upon referring to the authorities, exercise its discretion to slightly reduce the sentence imposed on the applicant. 10.In respect of the overall sentence, having cited relevant authorities, Mr. Lui submitted that Deputy Judge Sham's ordering 19 months of the sentence imposed on Charge 2 to run consecutively to that on Charge 1 might be debatable. Discussion 11.For burglaries committed at domestic premises, the starting point is one of 3 years (see HKSAR v Ng Wai Hing [2003] 2 HKLRD 338). The circumstances of the case were aggravated by the fact that these were premeditated crimes involving the use of a crowbar by the applicant. It is appropriate to enhance the starting point (see HKSAR v Chu Chun Man CACC415/2009). The applicant is not a man of previously good character. He has one previous conviction for the same offence, but he is not a persistent offender. 12.On Charge 1, Deputy Judge Sham properly took a starting point of 3 years and reduced it by one-third to give the applicant the discount he was entitled to for his guilty plea. The sentence was 2 years’ imprisonment. On Charge 2, it is not improper for Deputy Judge Sham to increase the starting point to 3 years and 6 months. After a discount for the guilty plea, the sentence was 2 years and 4 months' imprisonment. 13.We have considered relevant authorities, including Chu Chun Man (supra) and cases listed therein: HKSAR v Lee Kwok Chuen CACC445/2000; HKSAR v Hui Chi Tong CACC414/2007; HKSAR v Chan King Yuen CACC29/2010 and HKSAR v Hui Yee Lung CACC284/2009. The total sentence of 43 months Deputy Judge Sham arrived at by making 19 months of the sentence imposed on Charge 2 consecutive to the 24 months imposed on Charge 1 is, in our view, manifestly excessive. 14.That the applicant still voluntarily pleaded guilty notwithstanding a lack of sufficient evidence from the Prosecution showed that he was genuinely remorseful. In these circumstances, the court should give a further discount to the applicant as an encouragement. This is also in the public interest (see Secretary for Justice v Tsui Kim Ming Simon CAAR4/1997; HKSAR v Ng Wing Chung CACC176/2005 and HKSAR v Hui Chi Tong CACC414/2007). Deputy Judge Sham did not give any further discount to acknowledge the fact that the applicant still voluntarily pleaded guilty in the above circumstances. This made the sentence manifestly severe. 15.In our view, had the applicant not pleaded guilty, as stated above, in the absence of sufficient evidence, the appropriate total sentence should have been 38 months. We consider that the applicant should be given a further discount of 4 months for pleading guilty notwithstanding insufficient evidence. Accordingly, the appropriate total sentence is 34 months. 16.In view of the reasons above, we grant the application for leave to appeal, and treating the application as the appeal itself, we allow the appeal and substitute the sentences with the following:
Mr. Ira Lui, Senior Public Prosecutor of the Department of Justice, for the Respondent Ms. Karen Cheung, instructed by Messrs. Tang, Wong & Chow, assigned by the Director of Legal Aid, for the Applicant Translated by the Judgment Translation Unit of the Judiciary and approved by Mr. P. Y. Lo, Barrister-at-law. |
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