HKSAR v. Ngai Yiu Choi
Read the full judgment text of CACC 370/2010 on BabelCite. This Court of Appeal judgment was delivered on 1 June 2011 before Yeung JA, Hartmann JA.
Criminal law – sentencing – attempted burglary – assault occasioning actual bodily harm – consecutive sentences – guilty plea discount – whether total sentence manifestly excessive – application for leave to appeal – applicant with 14 previous convictions for dishonesty and violence followed a resident into a housing estate equipped with a screwdriver, spanner, gloves and surgical mask – cut padlock to access 1st Floor podium and broke window glass of Room 106 – neighbour Madam Lo reported to security guard Mr Chan – applicant used spanner to attack Mr Chan causing minor injuries – whether 6-month starting point for assault manifestly excessive given minor injuries – whether 3-year starting point for attempted burglary should be reduced because resident of Room 106 was not frightened or alerted – whether one-third discount for guilty plea appropriate – sentencing judge adopted starting points of 3 years for attempted burglary and 6 months for assault – reduced by one-third for guilty pleas – ordered sentences to run consecutively – total 2 years and 4 months – applicant sought leave to appeal arguing starting point for assault was manifestly excessive and starting point for attempted burglary should be lowered in light of HKSAR v Lee Wai Shing (unreported CACC 177/2006) – court held that the applicant had 14 previous convictions including four for robbery, one for assault occasioning actual bodily harm and one for common assault so was not a man of good character – the assault with a lethal instrument on an unprepared security guard performing his duties was serious – the 4-month sentence for the assault charge after one-third discount was lenient with no room for further reduction – the suggested mitigation that residents were not alerted did not apply because the applicant's acts did alert Madam Lo – the judge was right to adopt the respective starting points and to order the sentences to run consecutively – total sentence of 2 years and 4 months not manifestly excessive – application for leave to appeal against sentence dismissed
Legal issues: Whether the total sentence of 2 years and 4 months was manifestly excessive
Outcome: Application for leave to appeal against sentence dismissed
Cited by 8 cases · Cites 1 case
|
CACC 370 /2010 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF APPEAL CRIMINAL APPEAL NO. 370 OF 2010 (ON APPEAL FROM DCCC 914 OF 2010 ) _______________________ BETWEEN
_______________________ Before: Hon Yeung and Hartmann JJA Date of Hearing: 25 May 2011 Date of Judgment: 25 May 2011 Date of Handing Down Reasons for Judgment: 1 June 2011 ___________________________ REASONS FOR JUDGMENT ___________________________ Hon Yeung JA (giving the Reasons for Judgment of the Court): Introduction 1.The applicant, Ngai Yiu Choi appeared before Deputy District Judge G Lam on an indictment consisting of the 1st charge of attempt burglary and the 2nd charge of assault occasioning actual bodily harm. The applicant pleaded guilty to both charges and was sentenced to the respective terms of 2 years and 4 months to run consecutively, making a total sentence of 2 years and 4 months. Represented by Mr James Tze, the applicant sought leave to appeal against the sentence. 2.On 25 May 2011, we dismissed the application and indicated that we would hand down our reasons in due course. This we now do. The Facts 3.The applicant, a man with 14 previous convictions, mostly for drug offences and offences of dishonesty, followed a resident into Lei Lung House in Lei Yue Mun Estate with a view to commit burglary. 4.The applicant was well equipped, with a screwdriver for opening locks, and a spanner to break windows. He wore gloves as well as a surgical mask. 5.The applicant cut the padlock of a window to have access to the 1st Floor podium. The applicant broke the window glass of Room 106, but was unable to enter as the window was locked. A resident of Room 116 on the same floor (Madam Lo) saw the applicant standing on the podium just outside her flat and was apprehensive as to what he was doing. She reported the incident to a security guard, Mr Chan. 6.When Madam Lo and Mr Chan went to the window leading to the podium on the 1st Floor rear staircase, the applicant suddenly came in via the window from the podium. He used a spanner to attack Mr Chan, causing him minor injuries to his right hand when Mr Chan tried to ward off the attack. 7.With the assistance of Madam Lo’s husband who responded to his wife’s call for help, the applicant was subdued. However, after less pressure was used on him, the applicant tried to escape by running down the staircase. The applicant was finally intercepted by another security guard and the matter was reported to the police. The applicant said he committed burglary because of his drug addiction. Reasons for Sentence 8.The judge adopted the usual starting point of 3 years’ imprisonment for the attempted burglary charge and 6 months for the assault charge. The judge pointed out that it was a serious matter to attack a security guard who was performing his duties with a spanner. The judge also pointed out that it was fortunate that Mr Chan only suffered minor injuries. 9.The judge reduced the starting points by one-third on account of the guilty pleas and ordered them to be served consecutively, making a total sentence of 2 years and 4 months. Grounds of Appeal 10.Mr Tze, on behalf of applicant, did not challenge the 3-year starting point for the attempted burglary charge, but suggested that the 6-month starting point for the assault charge was manifestly excessive in the circumstances of the case and in light of the “applicant’s previous similar record”. 11.Mr Tze complained that the judge had not taken into consideration the fact that the injuries suffered by Mr Chan were relatively minor. He also suggested that the sentence on the 1st charge of attempted burglary could be lowered on the basis that resident of Room 106 was not frightened or alerted by the applicant’s act. Discussion 12.We were surprised by Mr Tze’s reference to the applicant’s previous records. Of the applicant’s 14 previous convictions, four were convictions for robbery, one for fighting in a public place, one for assault occasioning actual bodily harm, and one for common assault. The applicant had repeatedly committed offences of dishonesty and violence and he certainly was not a man of good character to justify any leniency. 13.The offence of assault occasioning actual bodily harm can be committed in various circumstances and there is no tariff sentence. Sentence depends on the facts of each case and therefore sentences in other similar cases provide little assistance. 14.The applicant, in an attempt to escape from lawful apprehension, used a spanner, a potential lethal instrument, to attack Mr Chan who was performing his duties as a security guard and was obviously not prepared for the attack. It was simply wrong to say that the judge had not paid sufficient regard to Mr Chan’s relatively minor injuries. If Mr Chan had been more seriously injured, the applicant would be facing a much heavier sentence than the 4 months for the assault charge. 15.The 4-month sentence on the 2nd charge, after a one-third discount from the 6-month starting point for the guilty plea, far from being manifestly excessive, was a lenient sentence with no room for further reduction. 16.Mr Tze accepted that the starting point adopted by the judge on the 1st charge is appropriate and correct. However, he suggested, relying on HKSAR v Lee Wai Shing (unreported CACC 177/2006), that “the persons in the subject premises was not frightened or alerted by the act of the applicant”, and therefore the normal starting point could be lowered. 17.The defendant in Lee Wai Shing (supra)walked past a unit in a housing estate and tried to push open the metal grille before using a screw driver to prise open the wooden door. The Court of Appeal (differently constituted) took the view that what the defendant did would be less likely to alert the people inside the premises and on that basis reduced the usual 3-year starting point by three month to 2 years and 9 months. 18.The applicant was a professional burglar. He was equipped with a spanner, a screwdriver, a pair of gloves and a surgical mask. He broke open the window to access the podium. Although there was no one in Room 106 that the applicant tried to burgle by breaking its bedroom glass window, what he did alerted a neighbor Madam Lo to the extent that she found it necessary to report to the security guard. The suggestion that “the persons in the subject premises was not frightened or alerted by the act of the applicant” in the circumstances of this case was not a mitigating factor at all. Conclusion 19.In our view, the judge was right to adopt the respective starting points for the two charges as he did. The judge was also right in ordering the two sentences to run consecutively. 20.The total sentence of 2 years and 4 months was not manifestly excessive and the application for leave to appeal against sentence was therefore dismissed.
Ms Peggy Leung, SPP(Ag.) of the Department of Justice for the Respondent. Mr James Tze instructed by Messrs Samuel Ho & Co assigned by the Director of Legal Aid for the Applicant. |
Cases cited in this judgment
Other judgments that cite this case