HKSAR v. Lee Chiu Yui also known as Li Chiu Yui and Lee Hung Kim

CACC 24/2014

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 24 OF 2014

(ON APPEAL FROM DCCC 1079/2013)

------------------------

Before: Hon Lunn VP, and D Pang J in Court

Date of Hearing: 12 September 2014

Date of Judgment: 12 September 2014

Date of Reasons for Judgment: 15 October 2014

---------------------------------------

REASONS FOR JUDGMENT

---------------------------------------

Hon D Pang J (giving the Reasons for Judgment of the court):

1.On 8 January 2014, before Judge CP Pang in the District Court, the appellant pleaded guilty to one charge of burglary of a temporary office of a construction company in a construction site (Charge 1) and one charge of remaining without authority after having landed unlawfully (Charge 2). He was sentenced to a total term of 3 years and 4 months’ imprisonment[1]. On 22 January 2014, the appellant gave notice to apply for leave to appeal against sentence. That application was granted by the single judge (Chu JA) on 30 April 2014. The appeal was allowed by us on 12 September 2014. These are our reasons.

THE FACTS

2.The facts of the case were as summarized by the trial judge in his Reasons for Sentence:

“2. The facts admitted by the defendant reveal that at around 1 am on 3 October 2013 a team of police officers spotted the defendant climbing over the fences into a construction site. The defendant further climbed into a temporary office through an air‑conditioner space. He was intercepted by the police when he later climbed out of the construction site. The defendant’s sling bag was searched with five screwdrivers, two pairs of pliers, one cutter, nine cutter blades, one pair of labourer gloves, one flashlight, one electric drill key and a hexagonal key found.

3. The defendant admitted that he had attempted to steal from the premises. He had entered into Hong Kong illegally from Shenzhen three days ago.

4. The person in charge of the premises confirmed that the premises had been cleared out with all properties removed by the end of September 2013.”

BACKGROUND AND MITIGATION

3.The appellant is aged 40.  He had on five previous occasions  Of these seven convictions, five (dated November 1991, October 1992, November 1994, July 1996 and August 2012) were for unlawful remaining.  The appellant has no previous conviction for burglary.  It was claimed that he needed quick money to finance his mother’s medical treatment, hence the present infraction.

THE SENTENCE

4.Insofar as it concerns the present appeal, the following is what the judge said:

“15. 2½ years imprisonment as the appropriate starting point for a single burglary of non-domestic premises has been well settled in AGv Lui Kam Chi [1993] 1 HKC 215.

16. In relation to the second offence, a term of 15 months imprisonment after a guilty plea has been settled as the appropriate starting point in R v So Man King [1989] 1 HKLR 142.

17. It has been well settled that the sentence for burglary should run consecutively to the sentence for unlawful remaining in Hong Kong: see HKSAR v Kei San Man CACC 246/1999 (unreported).

18. In the present case, I do not see any special circumstances such as strong humanitarian grounds warranting either a reduction in the starting point or a departure from the usual policy that the sentences should be consecutive.

19. I adopt 2½years imprisonment as the starting point for the first charge.

20. For the immigration offence, the defendant has repeatedly entered Hong Kong unlawfully. He is a persistent offender. The previous sentences obviously could not deter him from coming to Hong Kong unlawfully.

21. In order to deter him from repeating the offence and in the interest of the community, I will enhance the starting point, applying the principle in HKSAR v Chan Pui Chi [1999] 2 HKLRD 830.

22. I adopt 2½years imprisonment as the starting point for the second charge.

………

26. I do not see any mitigating factors in the case except the defendant’s plea of guilty, for which he will get one-third reduction.

27. I have considered the principle of totality and find that the sentence in the two offences should run consecutively.”

GROUNDS OF APPEAL

5.Mr James Tze advanced three substantial grounds.

6.Ground 1:  Given that the burgled premises were vacant, so that there could be no possible loss of property, the starting point of2½ years for Charge 1 was manifestly excessive.  That starting point is appropriate only if the premises were occupied.

7.Ground 2:  Notwithstanding the fact that the appellant was a repeated offender, the enhanced sentence of 20 months for Charge 2 was manifestly excessive.  It represents an increase of 33.3% from the 15‑month tariff after plea[2].

8.Ground 3:  The overall term of 3 years and 4 months was manifestly excessive, made so particularly by the judge’s failure to order the two constituent sentences to be partly concurrent.  Given the enhancement in Charge 2, the totality principle requires that to be the correct order.

DISCUSSION

Ground 1

9.The burglary in HKSAR v Chau Man Ying CACC 439/2011 (unreported) involved a vacated residential building awaiting redevelopment.  The defendant had entered into it without equipping himself with any housebreaking instruments.  Noting the state of the building, the low value of the property stolen[3] and the fact that it was an “opportunistic theft”, the judge sentenced him to a lesser term of 2 years’ imprisonment after trial.  (The customary starting point of a domestic burglary is 3 years after trial.)  On appeal, this Court (differently constituted) observed: “We have seen photographs of the building and the unit in question.  Although the premises … 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 defendant was very low.  We think … 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.”  Accordingly, the 2-year term was further reduced by substituting such sentence as would allow the defendant’s immediate release.  That worked out to be a year in custody as between the time of the defendant’s arrest and the appeal.

10.In HKSAR v Shea Pat Chi CACC 196/2012 (unreported), the defendant who pleaded not guilty to burglary was caught prising the metal grille of a unit in an empty residential block.  He had with him two crowbars, five screwdrivers, one hammer, one spanner, two pairs of tongs, one towel, one torch, two knives and one hand glove.  Noting the fact that the building was vacant, and that valuable property was unlikely to be found in any of the units, the judge also sentenced the defendant to the lesser term of 2 years’ imprisonment.  On appeal, this Court (in a third different combination) declined to further reduce that sentence.  It distinguished the Chau case on the basis that here, the defendant was heavily equipped for a clearly premeditated offence.  It pointed to the fact that there was an actual act of breaking in.  The Court concluded that the 2-year term was not manifestly excessive.

11.Regardless of their different results, both the Chau case and the Shea case lend support for the proposition that in the highly unusual situation where observably vacated premises with no or little loss of property are involved, the sentence for their burglary may reflect that fact by the adoption of a lower starting point for sentence.  It is irrelevant whether the premises are domestic or commercial.

12.The Summary of Facts described the temporary office in this case as “cleared out with all properties removed”, and was “ready to be demolished” on the day following the present offence.[4]  The photographs made available to this Court substantiate that description.  In the circumstances, the customary starting point of 2½ years for a non-domestic burglary was manifestly excessive.  Given the array of housebreaking tools present, and the appellant’s determined and purposeful acts of trespass, a starting point of 2 years’ (and an ultimate sentence of 16 months’) imprisonment would have been appropriate.

Ground 2

13.It is trite that where a particular offence is repeated by a defendant on a number of occasions, there will be a time when such recidivism has to be met with a higher sentence.  We accept that for Charge 2, such an enhancement was justified.  We note, however, the 16‑year break between the appellant’s fourth (July 1996) and fifth (August 2012) conviction for unlawful remaining[5].  We note that for his fifth conviction, the appellant was sentenced to 15 months’ imprisonment, no doubt as an extenuation of the 18 months that he received for his fourth conviction because of the 16-year gap[6]. In the circumstances, we do take the view that the enhancement as imposed by the judge was manifestly excessive.  A sentence of 18 (as opposed to 20) months’ imprisonment would have been appropriate.

14.We take this opportunity to rehearse the by-stage approach that this Court proposed in HKSAR v Hau Hoi Tung CACC 39/2002 (unreported) on sentencing a repeated offender of unlawful remaining[7]:

“A sentence of 18 months would have been justified for a plea of guilty to a second offence of this kind and, for a third offence, there could be no legitimate complaint to a sentence of 21 months’ imprisonment where a plea of guilty had been entered.”

Ground 3

15.With the individual sentences in Charge 1 and Charge 2 reduced, they should, in keeping with established principles, be allowed to remain completely consecutive.

CONCLUSION

16.We allowed the application for leave to appeal against sentence and, treating the hearing of the application as the hearing of the appeal, we quashed the sentences of imprisonment imposed in respect of Charges 1 and 2, namely 20 months respectively.  In their place we imposed sentences of imprisonment of 16 months imprisonment for Charge 1 and 18 months imprisonment for Charge 2.  We ordered that the sentence of 18 months imprisonment imposed in respect of Charge 2 be served consecutively to the sentence of 16 months imprisonment imposed in respect of Charge 1. Accordingly the total sentence of imprisonment imposed on the appellant is 2 years and 10 months.

Ms Ching Wai Ming, Jasmine, SPP of the Department of Justice, for the respondent

Mr Y K Tze, James, instructed by H L Wong & Co, assigned by Legal Aid Department, for the appellant

[1]  Charge 1: 20 months; Charge 2: 20 months; both of which were to run consecutively giving 40 months or 3 years and 4 months in total.

[2]  In court before us, counsel intimated that he would abandon this ground.  But as can be seen from paragraphs 14 and 15 of this judgment, this ground is in fact a valid complaint. 

[3]  It comprised small sums of cash in four currencies, one 16-stamp first-day cover and one camera and two mobile phones that were obviously old and worth little.

[4]  Appeal Bundle, p 6, at paragraph 7.

[5]  See paragraph 3 above.

[6]  Appeal Bundle, p 13, the appellant’s criminal record.

[7]  Paragraph 8 of the judgment.