HKSAR v. Yip Chun Chung

CACC 225/2013

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 225 OF 2013

(ON APPEAL FROM DCCC 283 OF 2013)

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BETWEEN

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J U D G M E N T

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Hon Lunn JA (giving the judgment of the court):

1.The applicant seeks leave to appeal against a sentence of 8 months’ imprisonment, and the order that it be served consecutively to a sentence of 14 months’ imprisonment the applicant was then serving, which was imposed upon him on 14 June 2013 by District Court Judge J Lam following his conviction on his plea of guilty of the offence of theft, contrary to section 9 of the Theft Ordinance, Cap. 210. The applicant was acquitted by the judge after trial of Charge 1 on the charge sheet, namely attempted burglary.

THE FACTS

2.The Particulars of Offence of the charge alleged that on 19 January 2013 near the junction of Hing Wah and Tung Chung Streets in Cheung Sha Wan, Kowloon the applicant had stolen seven drain covers belonging to the Government of the HKSAR.  The applicant was observed in the course of the theft by a member of the public who made a report to the police.  Soon after that the applicant sold the seven drain covers and some paper boards to a member of staff of a recycling company for $50.  The Summary of Facts, which the applicant accepted, did not describe the value of the seven drain covers.  When he returned later in the day to try to sell more paper boards, the applicant was arrested by police officers investigating the earlier theft.  Under caution the applicant admitted the theft.

Reasons for sentence

3.Having noted that the applicant was 44 years of age the judge observed that over the period from 1986 to 2013 he had been convicted of criminal offences on no less than 21 occasions.  The offences included robbery, attempted burglary and theft, together with possession of dangerous drugs.  Then, on 26 February 2013 the applicant had been sentenced to 14 months’ imprisonment for unlawfully trafficking in dangerous drugs.

4.The judge rejected the mitigation that the applicant had committed the offence in order to obtain monies to pay for the medical expenses of his wheelchair-bound co-habitee as being “not a good reason”.  He noted that the seven drain covers had been sold for a mere $50.  On the other hand, he said that the absence of the covers would put the drainage system at risk of being blocked, with the potential for damage by flooding.  Noting that the drain covers were placed over a drain near a flower bed underneath a flyover, the judge said that, in consequence, there was a risk that workmen attending the flower beds or passers-by taking a shortcut in order to cross the road might fall into the drain and sustain injuries.  In consequence, he determined the offence to be “serious”.

Starting point for sentence

5.Having observed that the applicant had committed a number of offences of dishonesty, the judge stipulated a starting point for sentence of 12 months’ imprisonment.

Discount

6.For his plea of guilty, the judge afforded the applicant a discount of one third from that taken as the starting point for sentence.

Sentence

7.Having noted that at the time of sentencing the applicant was serving a sentence of 14 months’ imprisonment for the offence of unlawfully trafficking in dangerous drugs, the judge said that he could see no reason why any of the sentences of imprisonment which he imposed should be made concurrent to the sentence of 14 months’ imprisonment.  Accordingly, he sentenced the applicant to 8 months’ imprisonment, ordering that it be served consecutively to the sentence of 14 months’ imprisonment.

Grounds of appeal against sentence

8.In the grounds of appeal against sentence advanced on behalf of the applicant, Mr Geoffrey Chang submitted that the judge had erred in stipulating a starting point for sentence which was too high, namely 12 months’ imprisonment.  Secondly, he had erred in attributing too much weight to the risk of injury following the removal of the drain covers.  Thirdly, the judge erred in ordering the whole of the sentence of 8 months’ imprisonment to be served consecutively to the sentence of 14 months’ imprisonment.

Starting point

9.In support of his submission that the judge had erred in taking a starting point for sentence of 12 months’ imprisonment, Mr Chang drew the attention of the court to the judgment of Deputy High Court Judge Pang Po Kam, as she was then, in HKSAR v Chan Wai Kit, a translation of which has been provided to the court. [1] It was suggested that the risk to the public was even greater in that case given that the drain covers were removed from the road itself.  Mr Chang suggested that in the applicant’s case a starting point in the range of 4½ to 6 months’ imprisonment would be sufficient to serve as a general and personal deterrent.

Totality

10.Mr Chang submitted that it was trite law that in sentencing an offender, who had been sentenced recently to imprisonment by another court for other offences, the sentencing judge must have regard to the totality of all the sentences of imprisonment is to which the offender will be subject. [2] That was not done by the judge.

A CONSIDERATION OF THE SUBMISSIONS

11.In Chan Wai Kit, the applicant had been sentenced to a total of 11 months’ imprisonment for six offences of theft of drain covers outside various swimming pools over the period 16 to 24 November 2011.  On the occasion of the last theft, he was apprehended making away from the Yuen Long Swimming Pool with eight drain covers.  His theft of the other drain covers came to light as a result of his admissions.  Today, Ms Chiu, for the respondent, has informed the court that a total of 26 drain covers were stolen in the six offences of theft.

12.The judge noted that the applicant, a single man of 27 years of age, had five previous convictions, two of which “involved theft”.  She agreed with the magistrate’s determination that the removal of drain covers from the road posed a risk that pedestrians might be injured by falling into the resulting holes and that was an aggravating feature in the commission of the offences.

13.The judgment did not state the individual sentences imposed by the magistrate, which resulted in the imposition of a total of 11 months’ imprisonment on the applicant.  However, by deduction it appears that the individual sentences were of 3 months’ imprisonment, by which it is to be inferred that the starting point for sentence was 4½ months’ imprisonment.  Today, Ms Chiu confirmed that to be the case, save in respect of Charge 4, in which the sentence was 2 months’ imprisonment.  The judge did not interfere with the individual sentences of 3 months’ imprisonment, but reduced the overall total sentence to 9 months’ imprisonment by making only three of the sentences consecutive to each other and the other sentences concurrent.

14.In the case of this applicant, the judge was correct to have regard to his criminal convictions for dishonesty.  They evidenced a pattern of dishonesty interspersed by convictions in relation to dangerous drugs.  In 1989, he was sentenced to 2½ years’ imprisonment for robbery; in 1994, he was sentenced to 9 months’ imprisonment for attempted burglary; in 2005, he was convicted of two charges of theft and ordered to be detained in a Drug Addiction Treatment Centre; in 2010, he was sentenced to 2 years’ imprisonment for an offence of attempted burglary.  Then, on 6 February 2013, he was sentenced to 14 months’ imprisonment for unlawfully trafficking in dangerous drugs.

15.Whilst the judge was correct that the applicant’s removal of the drain covers, thereby exposing holes into the drains themselves, posed some risk to persons who might come into that area that risk was ameliorated by the fact that the place was not a thoroughfare.  Certainly, it was not on the road.  As it is apparent from the photographs made available to the court at the time of sentencing, the seven drain covers were removed from a length of concrete culvert which ran parallel to the road, from which it was protected by a wall.  Beyond the culvert lay the relatively thick vegetation beneath the central part of the flyover.  The drain covers have imprinted on them what appear to be their dimensions, namely 400 x 600.  Although the unit of measurement is missing, it appears to be millimeters.  The resulting uncovered and unprotected part of the culvert is readily visible.  Further, the relatively thick vegetation near to the culvert suggests that this is not an obvious place to take a shortcut across the road.  Certainly, the photographs do not depict any sign of a worn or beaten-down path in the vegetation, suggesting that it was used for that purpose.  We accept Mr Chang’s submission that the judge placed too great an emphasis on the risk to others of removing the drain covers and exposing the open culvert.

16.We are satisfied that, having regard to all the circumstances, the starting point stipulated by the judge of 12 months’ imprisonment was too high.  In our judgment, the appropriate starting point for sentence of the applicant for the offence was 4½ months’ imprisonment.  Affording the applicant a discount of one third from the starting point for his plea of guilty, the appropriate sentence was 3 months’ imprisonment.

17.Given that the offence of theft is wholly different from unlawfully trafficking in dangerous drugs, for which the applicant had been sentenced about three weeks after the commission of the instant offence, it was appropriate that the sentence be served consecutively to the earlier sentence of imprisonment, subject to a consideration of overall totality.  Standing back and giving consideration to that issue, we are satisfied that the imposition in total of a sentence of 17 months’ imprisonment for the two offences was appropriate.

Conclusion

18.In the result, we allow the application for leave to appeal against sentence and, treating the hearing of the applications as the hearing of the appeal.  We quash the sentence of 8 months’ imprisonment and in its place impose a sentence of 3 months’ imprisonment.  We do not disturb the order that the sentence be served consecutively to the sentence of 14 months’ imprisonment imposed earlier.  Accordingly, the total sentence imposed on the applicant is 17 months’ imprisonment.

Miss Samantha Chiu, SPP, of the Department of Justice, for the respondent

Mr Geoffrey P. Chang, instructed by Herman H. M. Hui & Co., assigned by Director of Legal Aid, for the applicant