HKSAR v. Chau Man Ying

CAC C 439/2011

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 439 OF 2011

(ON APPEAL FROM DCCC NO. 773 OF 2011)

________________________

BETWEEN

________________________

Before: Hon Stock VP and Macrae J in Court

Date of Hearing: 15 May 2012

Date of Judgment: 15 May 2012

________________________

J U D G M E N T

________________________

Hon Stock VP (giving the judgment of the Court):

1.By leave of the single judge, this comes to us as an appeal against sentence imposed on 14 October 2011 in the District Court after trial by Deputy Judge Woodcock.

2.The appellant was charged with burglary committed on 24 May 2011 on the 4^th floor of 19 Nam Cheong Street, Sham Shui Po.  The building was a vacated six-storey residential building awaiting redevelopment.  At 1:45 pm the appellant was seen by police to enter the building holding a plastic bag.  They followed him to the 4^th floor and tried to gain entry to the door of the premises from which they heard noises but had difficulty opening the door. Half an hour later the appellant emerged carrying a white plastic bag in which was HK$85; RMB38; CAD$2; Patacas $10; a first-day cover with 16 stamps; a camera and two mobile telephones.

3.We do not have the value for the camera or the two mobile telephones, which were without chargers, but each of them appears old and we can assume that they are worth very little.

4.When the police arrested the appellant, he said that he needed to go to court the following day and had no money.  So he had come to the building to see if there was anything to steal so as then to sell for some money.  We see from his record, which is an extensive criminal record, that he was indeed due in court the following day on which occasion he was sentenced to 14 days’ imprisonment for theft.

5.The appellant pleaded not guilty.  He did not testify but the defence suggestion was that the property inside the building was abandoned or that, at least, the appellant must have so assumed.

6.The trial judge was satisfied that the property, once belonging to the occupants of the unit, at the time of the appellant’s entry belonged to the developers who had acquired the building; evidence from a managing agent supported this finding.  As to the appellant’s own assumptions, the judge noted that he had locked and secured the door behind him and can only have done so because he knew he should not be there and that he should not be taking property from there.

7.The judge noted that he was aged 56 years, was unemployed, has many previous convictions and we see that they stretch back to 1970 and in the last 10 years or so there have been convictions for trafficking in dangerous drugs and theft; supporting the judge’s conclusion that he has had a drug addiction problem for a long time.

8.Although the starting point for burglary of domestic premises is normally three years’ imprisonment, she sentenced him to 2 years’ imprisonment given that the entire block was vacant, that this was an opportunistic theft, and that what he found was not of high value.

9.We have seen photographs of the building and of the unit in question.  Although the premises into which he entered were peppered with belongings, the premises were almost derelict and although the belongings were the property of the developers, very few of them would have been of any interest to them and the value of the entire pickings by the appellant was very low.  We think, with respect, that a sensible exercise of discretion on the facts of this particular case would have resulted in a prosecution in the magistrate’s court; and we are satisfied that a materially lower sentence was warranted.

10.Accordingly, we allow the appeal, set aside the sentence of two years’ imprisonment and, noting that the appellant has been in custody since his arrest, substitute such sentence as will permit the appellant’s immediate release.

Ms Wong Kam Hing, SADPP of the Department of Justice, for the Respondent

The applicant, in person