HKSAR v. Dauz, Paul Benedick Joanai

HCMA 152/2014

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO 152 OF 2014

(ON APPEAL FROM KCCC 4446 OF2013)

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Introduction

1.On 30 January 2014, the appellant pleaded guilty to a charge of attempted burglary before Deputy Magistrate, Lam Tsz Kan, in Kowloon City Magistrate’s Court and was sentenced to 16 months’ imprisonment. On the application of the appellant, a review of sentence was conducted on 10 February 2014 by the Deputy Magistrate which was refused. The appellant now seeks to appeal the sentence imposed on him by the Deputy Magistrate on the ground that it was manifestly excessive.

2.I allowed the appeal and set aside the sentence imposed by the Deputy Magistrate and substituted it for a sentence of 10 months’ imprisonment to be served consecutively with a sentence of 1 month imprisonment imposed on the appellant in a previous case. I said I would provide elaborated written reasons for my decision which I now do.

Brief facts

3.A brief description of the facts upon which he was convicted is as follows. At around noon on 7 November 2013, a security guard was on patrol in a building in Hung Hom, which was under acquisition and vacant as a consequence. The guard heard some noise coming from one of the units on the third floor of the building. He proceeded to investigate and saw the appellant using a screwdriver to prise open the iron gate of a subdivided unit, referred to as Cubicle 3B. The guard shouted to the appellant to stop and the appellant immediately dashed into another subdivided unit, referred to as Cubicle 3A. The guard quickly called out to two police officers who happen to be investigating an unrelated matter on the fourth floor of the building. One of the officers located the appellant inside Cubicle 3A where he had been residing for several weeks.

4.An inspection of Cubicle 3B by the police revealed that the iron gate was partly detached from the iron frame and an iron hinge was lying on the floor. The appellant was arrested and later charged with attempted burglary. It so happened that the appellant was on bail for an offence of burglary that allegedly he and others committed. This offence took place also at around noon on 8 September 2013. It was alleged that he and others burgled a vacant building in Hung Hom in similar fashion to this offence. On this occasion one of the others was responsible for the burglary and the prosecution accepted a plea to theft of electric wires from the appellant. On 14 January 2014, he was convicted and sentenced to 1 month imprisonment for that offence.

5.Two matters that immediately arise from the circumstances of this case are that he committed this offence whilst on bail and that the two offences are of a similar type. The commission of an offence whilst on bail is without doubt an aggravating factor to be taken into account and the court may, subject to the totality principle, order that the sentences of the two offences be served consecutively to one another.

Appellant’s mitigation

6.In mitigation, it was submitted on behalf of the appellant that he was aged 36 who had arrived in Hong Kong from the Philippines in 2008 seeking asylum as a torture claimant. It was claimed that he was receiving a subsistence allowance until about a year ago which for some reason was terminated and that he now only receives financial aid from his friends. He has a younger brother who is also seeking asylum in Hong Kong. Emphasis was placed on his plea of guilty and his remorse for his actions. It was explained that the appellant had been squatting for two weeks before the offence in Cubicle 3A, on the third floor of the building which had been vacated. It was noted that Cubicle 3B did not have anyone living in it at the time of the offence and that this case should not be treated as one involving domestic burglary. It was also noted that the value of the damage to the iron gate was minimal.

Deputy Magistrate’s reasons for sentence

7.The Deputy Magistrate noted that the prosecution accepted that the premises were non domestic and he treated them as such for the purposes of sentencing. He took into account the conventional starting point for burglary of non domestic premises of 2½ years imprisonment by reference to the Court of Appeal decision of HKSAR v Sim Ka-wing, CACC 450/2000, 30 May 2001, unreported, which also provided that a downward adjustment on the starting point may be warranted in circumstances where the offending is opportunistic or less serious.  In that case, the Court of Appeal stated:

“The conventional starting-point of 2 1/2 years' imprisonment for the burglary of non-domestic premises relates to burglaries with no aggravating or mitigating features. Such burglaries will involve a measure of planning, and thus a degree of premeditation and planning is already built into the conventional starting-point. The conventional starting-point can be lowered in the case of the opportunistic burglar, akin perhaps to the sneak thief who walks into an open office to steal whatever he can find. Likewise, the conventional starting-point can be increased in the case of professional criminals who plan their burglaries with meticulous care and steal goods and cash of considerable value. In our opinion, the degree of planning and premeditation in this case was more (though not much more) than normal, and justified a modest increase in the starting-point.”

8.The above quoted passage made it abundantly clear that the starting point of 2½ years’ imprisonment was for a conventional case of burglary of non domestic premises with no aggravating or mitigating features. These sentencing remarks needed to be addressed within the context of the case under consideration. It is clear that a sentencing court should be guided by, amongst other things, the overall factual situation within which the crime was committed.

9.The Deputy Magistrate appeared to dismiss the appellant's wrongdoing as opportunistic as he had with him a screwdriver to prise open the locked iron gate of Cubicle 3B. He accepted that the premises were vacant and therefore unlikely that the offence would alarm occupants inside and that the items capable of being stolen would be of insubstantial value.  He then compared the sentences imposed in a number of cases with respect to burglary which had some similar but also dissimilar features to the present case.  He later resisted making such comparisons when urged to do so in reviewing the sentence.  Comparing or contrasting sentences between cases can be a mistake, as no two cases are alike, and great care should always be taken when referring to or considering the sentences imposed in other cases, as the main focus of the sentencer should always be to apply the relevant sentencing principles or guidelines to the particular circumstances of the case and of the offender.  In this case, the Deputy Magistrate imposed a starting point of 24 months’ imprisonment which he reduced by one third to 16 months for the appellants plea of guilty. He also ordrered that the sentence be served wholly consecutively to the sentence of 1 month imprisonment in the other case. This he did on the basis that the offence was committed whilst on bail and was totally distinct from the other offence.

10.It should be noted that even though the Deputy Magistrate imposed a starting point of 24 months, in his reasons for refusing the review he stated that he had deducted 6 months from the conventional starting point of 2½ years because he accepted the premises were vacated since 2011, the property capable of being stolen was likely to be of insubstantial value, and the appellant was not a professional burglar and had a clear record when the offence was committed although he was on police bail for another offence. As I will explain later these and other matters warranted a greater downward adjustment than was given by the Deputy Magistrate. There was the aggravating feature that the appellant committed this offence whilst on bail but this was dealt with by making the respective sentences of the two offences consecutive to one another after taking into account the totality principle.

Sentencing approach

11.Sentencing requires careful and full consideration of all of the relevant facts and circumstances in order to determine a proper and individualised penalty according to law. Common sense plays an important part in determining what is a just and proper sentence to be imposed upon the accused for the wrongdoing that he or she has committed. The relevant circumstances that warranted consideration in this case within the context of the relevant sentencing principles and guidelines were the following:

(1) The appellant appears to be a person of little or no means who is seeking asylum in Hong Kong as a torture claimant. He is homeless and without financial support. He was squatting in Cubicle A in the building where the burglary took place.

(2) It is hard to say whether there was no planning or pre-arrangement for the commission of the burglary given that he was involved in a burglary in similar circumstances a few months before this offence took place. What can be said is that the burglary he committed lacked any sophistication and was opportunistic in the sense that he burgled the adjoining cubicle to where he was residing.

(3) The burgled premises were vacant and disused and were described as “almost derelict”. It was acknowledged that nothing of substantial value was present or likely to be present in the premises.

(4) The appellant resided in the adjoining cubicle to the one that he burgled and it was accepted that it was not occupied by anyone while he was there.

12.Overall it is significant that the building was vacant and disused, and that it was highly likely that the cubicle did not contain anything of any real value. It is clear from the photographs taken at the scene that the building had been vacated and there were items strewn and discarded throughout it.

Conclusion

13.For the foregoing reasons, I consider that an appropriate starting point given the circumstances of the offending and of the offender would be 15 months’ imprisonment which I would reduce by one third for the appellant’s plea of guilty to 10 months’ imprisonment. I, like the Deputy Magistrate, would order that the sentence be served consecutively to the sentence of 1 month imprisonment imposed on him in the case of KCC 3546/2013.

14.Accordingly, I allow the appeal and set aside the sentence imposed by the Deputy Magistrate and substitute it for a sentence of 10 months’ imprisonment to be served consecutively to the sentence of 1 month imprisonment imposed on him in the other case.

15.It remains for me to thank both counsel for their very helpful submissions.

Ms Audrey Parwani, Public Prosecutor of Department of Justice, for HKSAR

Mr Mohammed Jawadullah Shah, instructed by DLA, for the appellant