HKSAR v. Li Ho Yin

CACC 240/2012

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 240 OF 2012

(on appeal from DCCC No. 266 of 2012)

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BETWEEN

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JUDGMENT

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

1.With leave granted by Kwan JA on 27 September 2012, the appellant appeals against sentence passed on him by Deputy Judge Anthony Kwok in the District Court on 12 June 2012.

Background

2.The appellant was charged with (1) going equipped for stealing, contrary to s.27(1) of the Theft Ordinance Cap. 210 and (2) assault occasioning actual bodily harm, contrary to common law and punishable under s.39 of the Offences against the Person Ordinance Cap. 212.  He pleaded guilty to both charges.  

3.The prosecution case was that at about 6 am on 28 December 2011, a domestic helper in a 1^st floor flat in a Tsimshatsui building was awakened by the sound of her window being opened.  She saw the appellant and screamed.  The appellant turned and ran.  The domestic helper alerted her employer, who in turn alerted the building’s watchman and police patrolling nearby.  The employer discovered the appellant standing on top of an air-conditioner cooling unit.  The appellant however eluded the employer and the watchman, pushing the latter to the floor in the process.  He was eventually subdued by police, dropping a crowbar and a pair of gloves during a struggle.  

4.The watchman (who was 67) suffered spinal injuries and was hospitalized for 3 days.  He was given sick leave for nearly 3 months.  The judge was informed that he had returned to work, but still suffered back pain.     

5.The judge sentenced the appellant to a total of 2 years imprisonment.  The judge took a starting point of 2 ½ years imprisonment for the 1^st charge, and 9 months imprisonment for the 2^nd charge.  He gave a reduction of one-third for the plea of guilty, resulting in a term of 20 months for the 1^st charge, and 6 months for the 2^nd charge.  After considering the principle of totality, the judge ordered that 2 months for the 2^nd charge should be served concurrently with the term for the 1^st charge, resulting in an overall sentence of 2 years. 

Appeal

6.The appellant appealed against sentence but this morning he has clarified that he only wishes to appeal against the sentence in respect of the “going equipped” charge.  He has referred us to 6 cases from 2009 to 2011 on “going equipped for stealing”, and counsel for the respondent has referred us to Tsang Wing Ming, the Court of Appeal decision to which the trial judge had referred. 

Cases

7.The cases on “going equipped for stealing”, in chronological order, are as follows:

(1) R v Tsang Wing Ming CACC315/1989, 3.1.1990 (unrep).

(2) HKSAR v Chan Yee Lap DCCC25/2009, 12.3.2009 (unrep).

(3) HKSAR v Cheung Cheuk Hung DCCC1306/2009 and DCCC3/2010, 5.2.2010 (unrep).

(4) HKSAR v Chan Wing Kai and ors DCCC1020/2009, 5.2.2010 (unrep).

(5) HKSAR v Lai Wai Yip and anor DCCC1296/2009, 17.5.2010 (unrep).

(6) HKSAR v Ng Wai Lun DCCC1150/2010, 23.2.2011 (unrep).

(7) HKSAR v Wu Chi Man DCCC310/2011, 12.7.2011 (unrep).

8.There are no guidelines for the sentencing of defendants for the offence of going equipped for stealing, for which the maximum sentence is 3 years imprisonment.   However, as with all offences, the courts seek to attain some degree of consistency in sentencing subject of course to the individual facts of each case, including the circumstances in which the defendant was apprehended, the nature of the equipment carried, the nature of the defendant, his record (if any), the commission of other offences at the same time as the subject offence, and the principle of totality.

9.In our view, the starting point adopted by the judge of 2 ½ years imprisonment for the “going equipped for stealing” offence was justified in this case. 

9.1Although “going equipped for stealing” has been said to be a crime of a “preventive” nature, on the admitted facts the appellant had advanced well past a merely preparatory or target-searching stage for theft or burglary. 

9.2He had opened the window of the domestic helper’s room on the 1^st floor - clearly he was intending to commit burglary on domestic premises. 

9.3He had a crowbar with him - obviously he was intending to break into locked premises, and was not content simply with stealing property in unguarded premises. 

9.4The nature of the defendant (which was emphasised by this court in Tsang Wing Ming) was that he was a professional burglar - his last 3 convictions were for burglary.  The subject offence was committed only 3 months after he had served a total term of 29 months for those burglary offences.

10.In Tsang Wing Ming, the appellant was found climbing scaffolding at 5 am with a screwdriver and a torch.  He was convicted of 1 charge of “going equipped for stealing” and 1 charge of resisting arrest.  He had 9 previous convictions “mostly for burglary”.  The court of appeal dismissed an appeal against sentence (after trial) of 2 ½ years on the “going equipped” charge, explicitly focusing on the nature of the appellant i.e. that he was a professional burglar. 

11.We shall now discuss the 6 cases on “going equipped for stealing” referred to by the appellant.

12.In Chan Yee Lap, the defendant was stopped (as he was “acting furtively”) by a police officer and found to possess a mask and gloves. He said he was preparing only to steal.  He had 6 previous convictions which included both robbery and theft.  He was sentenced in the District Court to 15 months imprisonment.  However it would be noted that he had not progressed beyond a “target-searching” stage, and was not in possession of equipment (such as a crowbar, spanner, screwdriver or pliers) with which he could have broken into locked premises.  Further the judge had not been referred to Tsang Wing Ming.

13.In Cheung Cheuk Hung, the defendant had been spotted inside a commercial building after office hours, but he left when he became aware that he was being watched.  He was apprehended having in his possession pliers and a screwdriver.  For this 12 months was used as a starting point for “going equipped for stealing”.  In the event the defendant was also charged with 5 counts of burglary committed previously, and he was sentenced to a total term of imprisonment using 3 years 9 months as a starting point.  Again it would appear that the judge had not been referred to Tsang Wing Ming.

14.Chan Wing Kai was a case where the 1^st defendant was driving a taxi containing 3 screwdrivers and a crowbar.  He was sentenced to 12 months imprisonment for the “going equipped” charge.  The defendant was also guilty of driving dangerously when trying to elude police, and the judge adopted a starting point of a total of 3 years imprisonment.  He had no previous convictions for burglary, and if only for that reason, that case could be distinguished from the present one.  

15.Lai Wai Yip was also different as the 2^nd defendant Au Yeung Chui Fong had a clear record.  Nevertheless the trial judge sentenced the 2^nd defendant adopting a starting point of 18 months for the “going equipped” charge.  She also admitted a charge of robbery for which she was sentenced to a total term of imprisonment using 4 years 4 months as a starting point.  

16.Ng Wai Lun was a case where the defendant had a crowbar when apprehended while still “target-searching”.  He was sentenced adopting a starting point of 12 months for a “going equipped” charge.  He confessed to a burglary committed 2 weeks previously, and he was sentenced to a total term of imprisonment using 3 years 4 ½ months as a starting point. However his case is also different as he could not be regarded as a professional burglar.              

17.In Wu Chi Man the 1^st defendant was arrested whilst prising open the lock of a restaurant.  The 2^nd defendant Sze Ah-Siu, the 1^st defendant’s girlfriend, was seen passing him a pair of gloves, for which she was charged with “going equipped for stealing”.  She was sentenced adopting a starting point of 12 months.  The 2^nd defendant was initially also charged with attempted burglary but that was not proceeded with.  And although she had a previous record of 16 offences of theft, there was no indication that she was a professional burglar.  That again distinguishes that case from the present for which, as discussed earlier, we consider a starting point of 2 ½ years appropriate.

Order

18.The appeal against sentence is therefore dismissed. 

Appellant, in person, present

Ms Lam Tak Wing, Winnie, SPP of Department of Justice, for the Respondent