HKSAR v. Zhang Zhen Jun

CACC 160/2012

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 160 OF 2012

(on appeal from DCCC 1331 of 2011 and DCCC 171 of 2012)

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Before: Hon Yuen JA and Line J in Court

Date of hearing and judgment: 20 December 2012

Date of Reasons for Judgment: 24 December 2012

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REASONS FOR JUDGMENT

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Hon Yuen JA (giving the Reasons for Judgment of the Court):

1.This is an application for leave to appeal against sentence. At the conclusion of the hearing, for the reasons appearing below, we gave leave to appeal, treated the application as the appeal proper, allowed the appeal, set aside the total sentence of 5 years and 5 months, and substituted a total sentence of 5 years (details of the individual terms appearing below).

2.The appellant had pleaded guilty to 2 charges of burglary (Charges 1 and 3) and 2 charges of remaining in Hong Kong without the authority of the Director of Immigration having landed unlawfully (Charges 2 and 4).  Deputy District Judge Cheang sentenced him to a term of 28 months imprisonment on each of Charges 1 and 3, and 22 months imprisonment on each of Charges 2 and 4.  To arrive at a total sentence of 5 years and 5 months, the judge ordered that the 28 months for Charge 1 and the 22 months for Charge 2 be served consecutively, and that 15 months of the term for Charge 4 be served consecutively to the 50 months for Charges 1 and 2, all other terms to be served concurrently.   

3.The facts revealed that in October 2011, the appellant twice entered Hong Kong unlawfully and burgled by night occupied homes in the New Territories.  

-   In the first burglary in Clearwater Bay, the house was occupied by a family, including two children; he entered the premises by cutting open the mosquito netting of a window with a pair of scissors which he left at the premises; there were signs of ransacking downstairs; and electronic items, including a computer, cameras, hard disks, as well as an identity card and passport, were stolen. The total value of the stolen goods was $21,440, but of course that takes no account of the inconvenience to the victims, nor to the feelings of violation so commonly experienced by those burgled in their own homes.

-   In the second burglary in Fairview Park, the female occupant lost the contents of her handbag, which included $3300, RMB 1000, a $3000 mobile telephone as well as a $1000 watch and octopus card.

4.The appellant was caught when he was returning to the Mainland hiding in a lorry.  No property was recovered.

5.The appellant has 16 previous criminal convictions in Hong Kong: 5 convictions being for burglary, 3 for theft and 8 for remaining without authority.  He was discharged from prison on 27 June 2011 (less than 4 months before the first burglary in this case), following his conviction in 2008 for 2 offences of burglary, 1 of theft, and 1 of unlawfully remaining, for which he received a total sentence (after plea) of 4½ years imprisonment (reflecting a starting point of 6 years 9 months).

6.The appellant is clearly a professional burglar, regularly entering Hong Kong unlawfully to commit burglary or theft.  He has obviously not been deterred by his previous terms of imprisonment.  It follows that the judge was right to consider heavier sentences for each of the charges in this case.

7.There is only one real concern, which is what is the right total sentence.  We have been taken by counsel for the appellant to a number of cases involving defendants who have committed burglary or theft, after having entered Hong Kong unlawfully or as a visitor. 

-   In HKSAR x Xie Guohong CACC384/2003, unrep. (5 Feb 2004), the defendant had a record of 6 previous convictions, including “immigration offences”, possession of dangerous drugs and assault.  He pleaded guilty to 4 charges of burglary of non-domestic premises which he committed within 2 months whilst in Hong Kong on a 2-way permit.  He took property of the value of $470,000, none of which was recovered.  This court (Yeung JA and Jackson J) held that the starting point taken by the district judge of 7½ years was manifestly excessive, and reduced the sentence to 4 years, which reflected a starting point of 6 years. 

-   In HKSAR v Tin Fei Lung田飛龍CACC337/2003, unrep. (23 July 2004), the defendant had a record of 3 previous convictions, 1 for theft, 1 for possession of imitation firearms and 1 for remaining in Hong Kong unlawfully.  He committed 2 burglaries on domestic premises less than 2 months after he was released from prison, to which he pleaded not guilty, but he pleaded guilty to 1 charge of remaining in Hong Kong unlawfully.    The trial judge sentenced him to a total of 5½ years imprisonment.  This court (Woo VP, Stock JA and Beeson J) held that although the overall sentence “may be slightly on the high side”, it was not against principle or manifestly excessive and declined to interfere.   

-   In HKSAR v Chow Keung周強 CACC478/2006, unrep. (20 April 2007), the defendant had a record of 1 previous conviction for robbery and 1 previous conviction of remaining in Hong Kong unlawfully.  He pleaded guilty to 2 charges of burglary at domestic premises and 1 charge of remaining in Hong Kong unlawfully.  Although this court (Stock JA and Burrell J) considered the circumstances of the second burglary to be serious (the appellant, who was masked, having confronted a domestic helper before taking properties worth more than $160,000), it reduced his sentence from 5½  years  to 4 years 9 months, which reflected a starting point of 7 years 1½ months.               

8.In the present case, the overall sentence after plea of 5 years 5 months reflected a starting point of 8 years 1½  months.  We appreciate the judge’s concern that the appellant’s previous sentence of 4½ years imprisonment (equivalent to a starting point of 6 years 9 months) for 2 offences of burglary, 1 of theft and 1 of remaining in Hong Kong unlawfully, had not served to deter him from committing those offences again.  However it seemed to us that the increase to a starting point of 8 years 1½ months was too drastic in the light of the cases referred to above, and restraint must be exercised so that the sentence is not disproportionate to sentences for more serious offences.  The main aggravating feature in this case is that the appellant is a repeat offender, but these burglary offences are not the most egregious of their type, as the appellant had entered and left the premises without being seen and without having threatened the occupants of either house.

9.For these reasons, we reduced the overall sentence to 5 years (reflecting a starting point of 7 ½ years).  The individual terms of sentence are undisturbed, save that we ordered that only 10 months (in place of 15 months) of the term for Charge 4 should be served consecutively to the 50 months for Charges 1 and 2.

Mr H.Y. Wong, instructed by Yip & Co, assigned by Director of Legal Aid, for the Applicant

Mr Jonathan Man, ADPP of Department of Justice, for the Respondent