HKSAR v. Chan Kong Yiu

CACC 359/2010 &
CACC 381/2010

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 359 OF 2010

(ON APPEAL FROM DCCC 500 OF 2010)

_______________________

BETWEEN

_______________________

AND

CRIMINAL APPEAL NO. 381 OF 2010

(ON APPEAL FROM DCCC 906 OF 2010)

_______________________

BETWEEN

______________________

Before: Hon Yeung & Hartmann JJA

Date of Hearing: 29 June 2011

Date of Judgment: 29 June 2011

Date of Handing Down Reasons for Judgment: 28 July 2011

______________________

REASONS FOR JUDGMENT

______________________

Hon Yeung JA (giving the reasons for judgment of the Court):

Introduction

1.The applicant, (Chan Kong Yiu) was involved in two separate cases, DCCC 906/2010 and DCCC 500/2010. The applicant, having requested to have DCCC 906/2010 brought up and dealt with together with DCCC 500/2010, appeared before District Court Judge D Yau on 6 October 2010 and pleaded guilty to a total of three charges.

2.In DCCC 906/2010, the applicant admitted to have burgled Kwong Fat Hong Securities on 23^rd Floor of Kwong Fat Hong Building in Sheung Wan between 9^th and 10^th of January 2003 and stole therein 6 gold coins. The judge sentenced him to 20 months’ imprisonment.

3.In DCCC 500/2010, the applicant pleaded guilty to the 1^st charge of conspiracy to steal and the 4^th charge of handling stolen goods. He admitted that in December 2009 and January 2010, he conspired with two others to steal 163 watches from Tenshoudo Watch Shop at Ginza in Tokyo, Japan. The applicant also admitted to have handled 4 watches burgled from Ikkodo Watch, Jewellery and Glasses shop of Japan in October 2009.

4.In respect of those two charges, the judge sentenced the applicant to the respective terms of 34 months and 16 months with 8 months to run consecutively, making a total sentence of 42 months’ imprisonment.

5.The judge ordered the 20-month sentence in DCCC 906/2010 to run consecutively to the 42-month sentence in DCCC 500/2010, making the overall sentence on the applicant one of 62 months’ imprisonment.

6.The applicant (represented by Mr David Boyton) sought leave to appeal against sentence. Having heard submissions, we took the view that the sentence imposed on the applicant, far from being manifestly excessive, was in fact inadequate to reflect the seriousness of the offences that the applicant had committed.

7.We took the view the applicant’s overall sentence should be 68 months. We therefore granted leave to appeal and treating the application as the appeal proper, we allowed the appeal by increasing the applicant’s sentence to 68 months. We indicated that we would hand down our reasons in due course and this we now do.

The Facts

DCCC 906/2010

8.On 9 and 10 January 2003, a number of commercial units in an office building in Sheung Wan were burgled. The metal grille of the building on the ground floor was prized open and the metal shutters of the commercial units were broken open.

9.Kwong Fat Hong Securities on the 23/F was one of the burgled premises wherein two safes were cut open with a hand saw and six gold coins valued at $6,000 were stolen from one of them whilst the door of the other was left ajar. DNA evidence linking the applicant to the burglary was present in the premises.

DCCC 500/2010

10.On 1 and 2 January 2010, Tenshoudo Watch Shop at Ginza in Tokyo, Japan was burgled by the applicant and two others pursuant to a conspiracy hatched up in Hong Kong.

11.The applicant and his accomplices flew to Japan on 17 December 2009, and went to scout for target shops to burgle. Once they had identified a target, they proceeded to acquire tools, including hydraulic jack, metal cutter and drills. The applicant entered the shop adjacent to the target shop with an accomplice while the other accomplice acted as a look-out. The common wall of the two shops was drilled open for access and the target shop was ransacked.

12.The applicant and his accomplices, having stolen the properties inside and divided them into 6 parcels, each sent two parcels by airmail to Hong Kong. They then returned to Hong Kong to wait for the loot to arrive.

13.On 5 January 2010, the applicant acknowledged receipt of two parcels which he had delivered from Japan by registered mail. Two parcels were also delivered to each of the addresses of his accomplices.

14.A large number of expensive watches and items of jewellery were subsequently recovered from the applicant, his accomplices and their associates, including the 163 stolen watches valued at almost $18,000,000.

15.Between 27 and 29 October 2009, another burglary occurred in Japan and 47 Rolex watches valued at over $2.5 million were stolen from a shop in Nagano Prefecture, Japan. Four of the stolen watches were recovered from the applicant and other stolen items were also recovered from his accomplices.

The Applicants’ Background

16.The applicant, aged about 53, was married with two daughters. He had 6 previous convictions, all of which were offences of burglary.

The Judge’s Approach

17.In DCCC 906/2010, the judge adopted the tariff for non-domestic burglary of 2 years and 6 months as laid down in R v Wong Man [1993] 1 HKC 80, saying that there were no further mitigating or aggravating factors other than the applicant’s guilty plea, for which the judge reduced the tariff by one-third to 20 months.

18.In DCCC 500/2010, the judge, on the conspiracy to steal charge, used the sentence for the underlying offence, namely burglary, as a reference. The judge referred to the following comments in HKSAR v Fan Kit Hung [2009] 6 HKC 314:

“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 (unreported CACC 338 & 339/2007) 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 skillfully executed involving the use of heavy instrument or equipment; (2) the offence is committed by two or more people; (3) the offence targets at 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 similar nature, and (6) the offender commits multiple offences.’

10. To that we would add that where substantial damage is done to the victimized premises, or to things in it, in the course of the burglary then that also will be an aggravating factor.”

19.The judge took the view that 6 of the 7 aggravating factors identified by the Court of Appeal were present, namely that the burglary was carefully planned and skillfully executed involving the use of jack and drill; that the offence was committed by 3 people; that the offence targeted substantial premises and involved watches worth a total of HK$ 17,879,812; that the burglars were professional; that the applicant had many similar previous convictions; and that substantial damage was done to the victimized premises. 

20.The judge added that there was an international element involved when the applicant, together with others, conspired to burgle a shop in Japan, thus made it more difficult and costly for the law enforcement agencies, both in Hong Kong and Japan, to investigate and to apprehend the perpetrators.

21.For each of the 7 aggravating factors that he had identified, the judge added 3 months to the starting point of 30 months, the usual tariff for non-domestic burglary, making a total starting point of 51 months for the 1^st charge of conspiracy to steal. The judge reduced the 51-month starting point by one-third to 34 months to reflect the guilty plea.

22.The judge refused the application by the prosecution to enhance the sentence under s 75(4) of the Organized and Serious Crimes Ordinance (OSCO), saying that the factors justifying any enhancement had already been reflected in the increased starting point of 51 months’ imprisonment.

23.The judge sentenced the applicant to 34 months’ imprisonment on the 1^st charge of conspiracy to steal.

24.The judge referred to R v Bernard Webbe & Ors [2002] 1 Cr App R(S) 22, in which Rose LJ mentioned the 9 factors as aggravating the offence of handling at 87 to 88, namely:

“ (1) Closeness to the original offence;

(2) Particular seriousness in the primary offence;

(3) High value to the loser;

(4) The fact that the goods were proceeds of a domestic burglary;

(5) High degree of sophistication;

(6) High level of profit made;

(7) The provision by the handler of a regular outlet for stolen goods;

(8) Threats of violence or abuse of power by the handler over others; and

(9) The commission of an offence while on bail.”

25.The judge took the view that the appropriate starting point for the 4^th charge of handling stolen goods was 24 months and he reduced the starting point by one-third to 16 months on account of the guilty plea. The judge also refused the application by the prosecution to enhance the sentence under OSCO.

26.On totality principle, the judge ordered only 8 months on the 4^th charge to run consecutively to the 34 months on the 1^st charge, making the  applicant’s total sentence in DCCC 500/2010 one of 42 months’ imprisonment.

27.The judge took the view that as the offence in DCCC 906/2010 was committed in 2003 and was wholly unconnected to DCCC 500/2010, the sentences in the two cases should be served wholly consecutively.

28.The judge sentenced the applicant, in both cases, to an overall sentence of 62 months’ imprisonment.

Grounds of Appeal

29.Mr Boyton had no complaint about the individual sentences imposed by the judge. His only complaint was that the total sentence 54 months (20 months for the burglary in DCCC 906/2010 and 34 months for the conspiracy in DCCC 500/2010), representing a notional starting point of six years and 9 months on what he describes as two non-domestic burglaries, was manifestly excessive, particularly when the applicant had to serve an additional 8 months for the handling charge.

30.Somehow, Mr Boyton suggested that the judge had increased the starting point on the “burglaries charges” by “two consecutive three months” because of the applicant’s previous convictions.

31.Mr Boyton, relying on a number of previous decisions, suggested that the judge should not have ordered the sentences on the burglary charge in DCCC 906/2010 and the conspiracy charge in DCCC 500/2010 to run entirely consecutively even though they were committed six years apart. Mr Boyton argued that the judge, in hearing the two cases together, could have imposed partially concurrent terms.

32.Mr Boyton suggested that the two “burglary” offences were comparable to those in Fam Kit Hung (supra) referred to by the judge and he emphasizes that the overall starting point for 13 burglaries in that case was only six years. Mr Boyton sought to draw reliance on the following passage in Fan Kit Hung (supra):

“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 (CACC 384/2003) which involved some $470,000. Nor was there any great damage to the victimized 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.”

33.Mr Boyton suggested that the overall starting point should be 6 years, and as the applicant had pleaded guilty, Mr Boyton argued that his total sentence should be 4 years instead of 62 months.

Discussion

34.We did not agree with Mr Boyton’s argument that the judge had increased the starting point on the “burglary charges” by “two consecutive three months” because of the applicant’s precious convictions. The judge increased the starting point on the conspiracy to steal charge, treating it as a burglary, from 30 months to 51 months on account of the aggravating factors that he had identified, including the applicant’s previous convictions. The judge was entitled to do so.

35.Whatever was the approach adopted by the judge, the question we had to consider was the appropriate starting points to be adopted on the facts of the case as well as the applicant’s background.

36.The applicant was clearly a professional burglar. He had 6 previous convictions, all for burglaries committed between 1986 and 1997. Of course, the applicant committed another burglary in 2003.

37.The Court of Appeal had indicated again, in HKSAR v Wu Chi Tai, Kennis (unreported CACC 256 & 257/2010), the need for deterrent sentences for offenders who are professional or serial burglars. Hartmann JA said in paragraph 23 of the judgment:

“It is also apparent, as this Court (differently constituted) noted in HKSAR v Fan Kit Hung [2009] 6 HKC 314, that there is an increasing appreciation of the need for deterrent sentences for offenders who are professional or serial burglars.”

38.Mr Boyton described the 30-month starting point adopted by the judge for the burglary charge in DCCC 906/2010 as “generous”. We would say that such a starting point was grossly inadequate. The judge should have increased the starting point on account of the applicant’s previous convictions.

39.A 30-month starting point for non-domestic burglary is suitable for one without any special aggravating feature, and in particular, normally only for a 1^st offender.

40.The burglary in DCCC 906 /2010 was quite a bad case when the applicant burgled an office unit by first prizing open the metal grille of the building on the ground floor and then the metal shutter of the unit. The applicant was clearly well equipped as he was able to cut open two safes. We could not ignore the fact that the applicant, by then, had already had 6 previous convictions for burglary.

41.We wish to echo what McMahon J emphasized in Fan Kit Hung (supra) at para 7 of the judgment:

“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.”

42.We were of the view that the starting point for the burglary offence in DCCC 906/2010 should be 3½ years’ imprisonment. With the guilty pleas, the sentence in DCCC 906/2010 should be 28 months’ imprisonment.

43.Mr Boyton suggested that the seriousness of the conspiracy offence was comparable to Fan Kit Hung (supra). We did not agree with such an observation at all. Indeed the passage that he referred us to clearly demonstrated the differences. In Fan Kit Hung (supra), the total amount involved was about $130,000; there was no great damage to the victimized premises; the defendant had no accomplices and had no previous conviction for burglary, whereas the applicant, a man with 6 or 7 previous offences of burglary, together with two accomplices burgled a shop in Tokyo and stole watches valued at about $18 million, and in the course of which the burgled premises were seriously damaged.  

44.It is true that Fan Kit Hung (supra) concerned 13 separate burglary offences, but that was more than sufficiently counter-balanced by the applicant’s previous convictions, all for burglary.

45.The judge, with respect, was right to refer to the international element. Indeed what the applicant and his accomplices did was unprecedented and was not within the contemplation of this court when tariff sentences were laid down for non-domestic burglary cases. The usual tariff had no application in this case.

46.The applicant and his accomplices went to Japan for the sole purpose of committing a serious burglary. They scouted for target shops to burgle and once a target was identified, they acquired sophisticated equipment to drill a hole in the common wall to gain access to the target shop and stole therein 163 expensive watches valued at almost $18 million. They then mailed the loot in parcels back to Hong Kong before themselves returning to Hong Kong in time to pick up the parcels.

47.The degree of planning and the mode of operation made this case one of, if not, the worst burglary case that this court had ever come across. Mr Boyton himself admitted that he could not think of a more serious burglary case. The applicant took an active part, and what he and his accomplices did had significantly damaged the reputation of Hong Kong.

48.In our view, the 51- month starting point for the conspiracy to steal charge, far from being manifestly excessive, was in fact inadequate to reflect the gravity of what the applicant and his accomplices did.

49.We were satisfied that a proper starting point, taken into consideration the applicant’s background, should at least be 5 years’ imprisonment. With a one-third discount for the guilty plea, the sentence for the offence of conspiracy to steal should be 40 months’ imprisonment.

50.Mr Boyton took no objection to the 8-month consecutive sentence on the handling charge. We were also of the view that 20 months of the 28-month sentence on the burglary charge in DCCC 906/2010 should run consecutively to the sentence in DCCC 500/2010.

51.We were satisfied that the applicant’s overall sentence should be 68 months’ imprisonment even though such a sentence represented a notional starting point exceeding the jurisdiction of the District Court.

Conclusion

52.We therefore granted leave to the applicant to appeal against sentence, and treating the application as the appeal proper, we allowed the appeal.

53.We increased the applicant’s sentence in DCCC 906/2010 from 20 months to 28 months’ imprisonment. We also increased his total sentence in DCCC 500/2010 from 42 months to 48 months (40 months on the conspiracy charge and 16 months on the handling charge with 8 months to run consecutively). On totality principle, we ordered 20 months in DCCC 906/2010 to run consecutively to the 48 months in DCCC 500/2010.

54.The total sentence on the applicant was increased from 62 months to 68 months.

Miss Hermina Ng, PP of the Department of Justice for the Respondent.

Mr David Boyton instructed by Messrs Y.K. Lau & Chu for the Applicant.