HKSAR v. Leung Ting Fung and Another

Before: Hon Lunn VP and McWalters JA in Court

Date of Hearing: 22 August 2014

Date of Judgment: 14 November 2014

_______________

J U D G M E N T

_______________

Hon McWalters JA (giving the judgment of the Court):

Introduction

1.The applicants appeared before District Judge Yau (“the judge”) on 20 March 2014 on a Charge Sheet containing five charges of burglary, contrary to section 11(1)(b) and (4) of the Theft Ordinance, Cap 210, and one charge of attempted burglary, contrary to the same provisions of the Theft Ordinance and also section 159G of the Crimes Ordinance, Cap 200.

2.The 1^st applicant pleaded guilty to the first, second and sixth charge, being charges of burglary and the fourth being the charge of attempted burglary.  The 2^nd applicant pleaded guilty to the first charge and the sixth charge.  As against the 1^st applicant the judge ordered that Charges 3, 5 and, as against the 2^nd applicant, Charge 2, not be further proceeded with without the leave of the court.

3.In respect of the 1^st applicant the judge imposed sentences of 20 months’ imprisonment on Charge 1, 20 months’ imprisonment on Charge 2, 20 months’ imprisonment on Charge 4 and 2 years’ imprisonment on Charge 6.

4.In respect of the 2^nd applicant he imposed identical sentences, namely 20 months’ imprisonment upon Charge 1 and 2 years’ imprisonment upon Charge 6.

5.He further ordered in respect of the 1^st applicant that 5 months of Charges 1, 2 and 4 be served consecutively to the sentence for Charge 6 thereby resulting in a total sentence for the 1^st applicant of 39 months’ imprisonment.

6.In respect of the 2^nd applicant he further ordered that 10 months of Charge 1 be served consecutively to the sentence imposed for Charge 6 thereby resulting in a total sentence for the 2^nd applicant of 34 months’ imprisonment.

7.Both applicants were serving sentences for other offences and the judge further ordered that the sentence he imposed should be served wholly consecutively to the applicants’ existing sentences.

8.The applicants applied for leave to appeal against these sentences. At the hearing of the applications we reserved our judgment which we said we would hand down at a later date.  This we now do.

The Background to the Offences

9.The first, second and fourth charges took place at different floors of a complex known as North Point Welfare Association, located at No. 210 Java Road, North Point, Hong Kong.  The first and second charges took place at Betterment College which is on the 2^nd Floor of the Association building.  The fourth charge took place at N. P. K. E. A. Student Services Centre, located at the 6^th Floor of the building.

10.In the first charge two USB memory sticks valued at $200 and cash of $600 were stolen, nothing was stolen in the second charge and nothing was stolen in the fourth charge.  The greatest loss of the victims was the cost of repairing the damage caused by the break-ins.

11.The offences were committed in a somewhat amateurish manner and were characterised by little of value being stolen and the applicants leaving behind evidence of their involvement in the offences in the form of cigarette butts from which their DNA could be extracted and finger and palm prints.

12.The sixth charge was the most serious charge as it involved the burglary of domestic premises.  The victim’s house was located at No. 26D Shek O Headland Road, Shek O, Hong Kong.  At around 7  .m. of the 12 March 2013 the occupant of the premises saw an unknown male at the gate of her backdoor.  She told this person to leave the premises immediately. The unknown male then walked away.

13.At around 9.30 p.m. on the same day this occupant returned home and found the door of the house open.  She entered the house and found two unknown males carrying her safe.  Upon seeing her the two men immediately fled the house and the occupant chased after them.  During the chase the men abandoned the safe at a bush outside the house.  The victim did not lose any property from this burglary.

14.Fingerprints were lifted from the drawer of the desk inside the master bedroom and from a mobile telephone paper box.  The fingerprints matched the 1^st applicant’s right thumb and the 2^nd applicant’s left ring finger.  When subsequently arrested the applicants made admissions to the police under caution.

15.An important feature of these offences was that they were committed by the applicants at a time when both of them were on bail for another burglary offence.

The Reasons for Sentence

16.The judge said that he could see no reason why he should depart from the normal sentencing guideline for burglary of non-domestic premises.  Consequently, he adopted a starting point of 30 months’ imprisonment for both applicants in respect of Charge 1 and the same period for the 1^st applicant in respect of Charges 2 and 4.  Recognising that burglary of a domestic premises warranted a higher starting point, he adopted 3 years’ imprisonment as his starting point for Charge 6.  Discounting these starting points by one-third to allow for the plea of guilty brought his final sentences for Charges 1, 2 and 4 down to 20 months’ imprisonment and for Charge 6 down to 2 years’ imprisonment.

17.As there were a multiplicity of charges he had to consider whether to order the sentences to be served concurrently or consecutively.  Being quite separate offences he was entitled to order that they be served consecutively but he correctly recognised that he was required to stand back and look at the totality of the sentences and arrive at a total sentence which was just without being crushing on the applicants.  Applying the totality principle he ordered that 5 months of Charges 1, 2 and 4 be served consecutively to the sentence for Charge 6 thus arriving at a final sentence for the 1^st applicant of 39 months’ imprisonment.  In respect of the 2^nd applicant he ordered that 10 months of Charge 1 be served consecutively to the sentence for Charge 6 thus arriving at a final sentence for the 2^nd applicant of 34 months’ imprisonment.  He did not explain why he ordered in respect of the 2^nd applicant that a larger part of Charge 1 should be served consecutively.

18.There was, however, one final feature which the judge had to address and this was the fact that both applicants were, at the time they appeared before him, serving sentences of imprisonment for other offences.

19.The offences for which the judge was sentencing the applicants occurred between 3 December 2012 and 12 March 2013.  The applicants were arrested for these offences on 27 March 2013.  However, on 3 April 2013 both applicants appeared before District Judge Browne charged with the burglary on 7 October 2012 of a restaurant in a commercial building in Causeway Bay.  The 1^st applicant also faced one charge of arson which was committed by him in the course of this burglary.  The 2^nd applicant was not charged with the arson offence as he was acting only as a lookout in the burglary and was unaware of the 1^st applicant’s act of arson.  These are the offences for which the applicants were on bail when they committed the offences the subject of the present application.

20.The two applicants pleaded guilty to the burglary and arson charges they faced and both were sentenced by Judge Browne to 20 months’ imprisonment on the burglary charge and the 1^st applicant was sentenced to a further 6 months on the arson charge.

21.However, whilst the 1^st applicant was on bail for the burglary and arson offences, he committed quite unrelated road traffic offences so that when he appeared before Judge Browne for sentencing on the burglary and arson offences he was currently serving a period of 6 months’ imprisonment for the road traffic offences.  Notwithstanding that these road traffic offences were committed whilst he was on bail for the arson and burglary offences, the judge considered that he should not order the sentences for these latter two offences to be served consecutively to the 6 months’ imprisonment for the road traffic offences.  Hence, his 26 months sentence for the burglary and arson offences commenced to run as from 3 April 2013, as did the 20 months sentence of the 2^nd applicant.  The way Judge Browne treated the 1^st applicant was prayed in aid to support the submission that the applicants should be similarly treated when deciding whether the sentences for their current offences should be ordered to be served concurrently with or consecutively to the sentences imposed by Judge Browne.

22.Thus, when these applicants appeared in the current case for sentencing the 1^st applicant was serving a sentence of 26 months and the 2^nd applicant a sentence of 20 months’ imprisonment.  When they appeared before the judge on 20 March 2014 the 1^st applicant’s estimated release date was 25 August 2014 and the 2^nd applicant’s estimated release date was 3 April 2014.

23.The judge was aware of the history of both applicants and of the need for him to make an order in respect of the sentences he was currently imposing on them as to whether those sentences should be served concurrently with or consecutively to the sentences they were then serving.  Without giving any reasons for his order, the judge simply said that the sentences he was imposing on both applicants should be served consecutively to the sentences they were then serving.

The Grounds of Appeal

24.Originally, no complaint was made about the starting point for these offences, the final sentence imposed or the orders as to which and by how much each of the sentences should be made consecutive to the others.  The sole and very narrow complaint on this appeal was in respect of the order that these current sentences be served wholly consecutively to the existing sentences.  However at the hearing of the appeal the applicants resiled from this position and attacked the sentences imposed as well as the order that they be served consecutively to the sentences imposed by Judge Browne.

25.In respect of this particular order the complaints are that the judge failed to take into account the principle of totality and secondly that when the sentences already being served are added to the sentences now imposed upon the applicants and that total sentence is then considered against a global view of the applicants’ criminality, then it becomes apparent that the current sentences are manifestly excessive.

26.In support of the first ground of appeal the applicants maintain that the fact that the current offences were committed whilst on bail for the offences to which they ultimately pleaded guilty before Judge Browne does not mean that the judge sentencing them for the current offences should not still apply the principle of totality to them in deciding whether or not to make a consecutive or a concurrent order in respect of them and the existing sentences of imprisonment.  As was illustrated by the way Judge Browne dealt with the 1^st applicant, it is argued that the mere fact that the second set of offences were committed whilst on bail for the first set of offences, does not mean that inevitably the later sentences must be served consecutively to the existing sentences or that when deciding whether to order the sentences to be served consecutively the totality principle is disapplied.

27.The second ground of appeal depends upon taking the existing sentences being served by the applicants, namely 26 months for the 1^st applicant and 20 months for the 2^nd applicant, together with the sentences now imposed on them, namely 39 months for the 1^st applicant and 34 months’ for the 2^nd applicant.  The total sentence that each applicant is now serving is 65 months for the 1^st applicant and 54 months for the 2^nd applicant.  Counsel for the applicants say that these total sentences represent starting points for the 1^st applicant of 8 years and 1.5 months’ imprisonment and for the 2^nd applicant of 6 years and 9 months’ imprisonment.  These total figures it is said are manifestly excessive given the number and type of offences of which they have been convicted and their overall culpability for these offences.

Discussion

28.This appeal raises the question of how offences committed on bail should be treated and whether sentences imposed in respect of them must always be ordered to be served consecutively to any sentence the offender is already serving

29.The starting point to answering this question is to determine how the fact that an offence has been committed whilst the offender was on bail, should be treated.  It has long been recognised that the fact that offences are committed whilst on bail is an aggravating feature of those offences which entitles the judge to enhance his sentencing starting point for them.[1]

30.The reason it is an aggravating feature is because, in terms of the offence, it demonstrates a serious disregard for the law and, in terms of the offender, it evidences a persistence in offending.  Both of these matters add to the culpability of the offender and like any aggravating feature should be dealt with by an enhancement of the starting point.

31.However, comments do appear in some cases which may give the impression that when offences are committed by an offender whilst on bail, his sentences for those offences should invariably be ordered to be served wholly consecutively to sentences he is currently serving.  One such case is HKSAR v Hoang Thi Thu Huyen CACC 195/2000; unreported, 4 August 2000, a case on which the respondent relied and from which it sought to derive the principle that if a defendant commits an offence whilst on bail, the sentence imposed should be ordered to be served consecutively.

32.In our view the courts in these cases were not seeking to expound a new legal principle or create an exception as to when the totality principle should be applied.  Rather they were doing no more than setting out what they viewed was the just sentence in the particular circumstances of the cases before them and how, by the use of the power to order consecutive sentences, they would achieve the sentences they wished to impose on the offenders before them.

33.We can find nothing in the case law that says that, as a matter of principle, sentences for offences committed whilst on bail must be ordered to be served wholly consecutively to an existing sentence without regard to the totality principle.[2] Certainly, the fact that offences are committed whilst on bail lends emphasis to the obvious conclusion that they are quite separate from the offences for which the offender is currently serving a sentence of imprisonment, but nevertheless in imposing sentence it remains necessary to have regard to the totality principle.

34.We are satisfied that the correct approach, consistent with sentencing principle, is to regard the fact that an offence was committed whilst on bail as a factor seriously aggravating that offence and to reflect the presence of this seriously aggravating factor by enhancing appropriately the starting point for sentence.

35.In the present case the judge sentenced both applicants on the basis that their offences were devoid of aggravating features.  In this he erred. 

36.That deals with how the fact that an offender has committed an offence on bail should be treated; but how should a court approach its sentencing task knowing that the offender before it is currently serving another sentence of imprisonment?  The correct approach to sentencing an offender in this situation is now well established in Hong Kong.  The judge dealing with an offender who is serving a sentence of imprisonment for offences occurring around the time of other offences for which the judge must now sentence the offender must step back and take a global view of the total sentence in light of the whole of the criminal conduct.  In HKSAR v Lee Ming Yin CACC 332/2010; unreported, 26 January 2011, this Court said:

“5. The principle is long settled that a sentencing judge, when dealing with an offender who has been sentenced to imprisonment by another court for another offence, must have regard to the totality of all the terms of imprisonment to which the offender will become subject: see, for example, R v Ng Chun Keung [1993] 2 HKC 171 at 173.

6. In R v Tong Hoi Fung [1998] 1 HKLR 601, this Court said that, in determining an appropriate sentence in light of the totality principle, the matter should be approached as if the two cases were being heard together.”

37.In the present case the judge did not reveal  his thinking in ordering the sentences he was imposing to be served wholly consecutively to the applicants’ existing sentences.  So, we do not know whether he was influenced in doing so by the fact that that these offences were committed whilst the applicants were on bail.  It is clear that the judge applied the totality principle to the offences before him but there is nothing in his Reasons for Sentence to show that he went on to apply it to the sentences for the offences with which Judge Browne dealt.  He does not appear to have stepped back and taken a global view of the total sentence for the whole of the applicants’ criminal conduct.  That is, he did not apply the totality principle to such final sentences as would be served by the applicants as a consequence of him ordering his sentences to be served wholly consecutively to their existing sentences.  In this the judge also erred.

38.As a result of the errors of the judge it now falls to us to sentence the applicants afresh.

39.Treating the fact that the offences were committed whilst on bail as an aggravating feature we would enhance the starting points for each of the offences adopted by the judge by 6 months.  That results in starting points of 36 months for Charges 1, 2 and 4 and 42 months for Charge 6.  After discounting these starting points by one-third to allow for the pleas of guilty the final sentences become 24 months for Charges 1, 2 and 4 and 28 months for Charge 6.

40.They are all separate offences and, in principle could be ordered to be served consecutively to each other, but that would result in a disproportionate punishment.  Applying the totality principle to arrive at a just punishment for these offences we are of the view that for the 1^st applicant 3 months of the terms of imprisonment imposed in respect each of Charges 1, 2 and 4 should be served consecutively to the sentence imposed for Charge 6, which results in a total sentence for him of 37 months’ imprisonment.  For the 2^nd applicant 3 months of the terms of imprisonment imposed in respect of Charge 1 should be served consecutively to the sentence of Charge 6, which results in a total sentence for him of 31 months’ imprisonment.

41.These offenders are young, 21 and 22 years of age respectively, and hopeless at their chosen profession.  Something must be done to discourage them from trying to become better burglars.  The interests of the community lie in diverting them at this early age from a life of crime and encouraging their rehabilitation.  This can be achieved by ensuring that the total sentence leaves them with a not too distant end to their incarceration; an end that is within sight and is, therefore, something that can give them some hope and a future to look forward to.  To this end we order that their sentences for the present offences are to be served wholly concurrently with their existing sentences.

42.But that, as we have explained is not the end of the matter.  It now becomes necessary to take into account the sentences imposed by Judge Browne and consider whether, when they are taken together with the sentences we propose imposing, the total sentences would be excessive for the whole of the applicants’ offending.

43.The orders we impose will operate from 20 March 2014, some 11 months after the commencement of Judge Browne’s sentences.  Consequently, the total sentences for the whole of the applicants’ offending would be as follows:

CACC 109/2014 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF APPEAL CRIMINAL APPEAL NO. 109 OF 2014 (ON APPEAL FROM DCCC NO. 51 OF 2014) ____________ BETWEEN   HKSAR Respondent and   LEUNG TING FUNG (梁庭鋒) 1st Applicant   MOK TSZ KIN (莫子健) 2nd Applicant ____________

1st applicant	Offending
11 months (Judge Browne) plus 37 months (this Court) Total: 48 months (after a plea of guilty)	1 non-domestic burglary 1 arson 2 non-domestic burglaries 1 attempted non-domestic burglary 1 domestic burglary

2nd applicant	Offending
11 months (Judge Browne) plus 31 months (this Court) Total: 42 months (after a plea of guilty)	1 non-domestic burglary 1 non-domestic burglary 1 domestic burglary

44.The 1^st applicant’s total of 48 months and the 2^nd applicant’s total of 42 months would follow from starting points of 6 years (72 months) and 63 months respectively.

45.In considering whether these starting points are appropriate for these applicants’ criminal conduct, it is necessary to form a view of the seriousness of their offending.  Their offending, as we have noted, was aggravated by the fact that the offences before us were committed whilst on bail.  The 1^st applicant’s arson offence adds to the gravity of that burglary offence.

46.But, as to the burglaries themselves, it is clear that they were committed amateurishly, if not ineptly, and that little of any value was stolen.  In the burglary before Judge Browne only $210 was stolen but damage to property exceeded $14,000.

47.The first charge before us resulted in two USB memory sticks valued at $200 and cash of $600 being stolen.  In the second and fourth charges nothing was stolen and in the sixth charge a safe was removed from the house but was abandoned by the applicants when they were pursued by the householder.  Consequently, no loss was suffered by the victim of the sixth charge.

48.In our view a total sentence that best reflects this criminality is 5 years’ imprisonment for the 1^st applicant and 4 years’ imprisonment for the 2^nd applicant.  Discounted by one-third to allow for the pleas of guilty brings the global sentences down to 40 months’ imprisonment for the 1^st applicant and 32 months’ imprisonment for the 2^nd applicant.  As they have already served 11 months of the sentence imposed by Judge Browne the sentences that should be imposed upon them for their current offending should not exceed 29 months for the 1^st applicant and 21 months for the 2^nd applicant.

49.In order to impose these sentences on the applicants it is necessary to revise downwards the sentences we were proposing to impose on them for their current offences.

Conclusion

50.For the reasons we have set out herein, we allow both applicants’ applications for leave to appeal their sentences and treating the hearing of the applications as the hearing of the appeals, allow their appeals.  We set aside the judge’s sentences in respect of each of the offences and his orders that the sentences of the applicants be served wholly consecutively to the sentences which the applicants were then serving.  In substitution for the judge’s sentences we impose the following sentences on the applicants:

The 1st applicant
Charge 1	-	24 months’ imprisonment
Charge 2	-	24 months’ imprisonment
Charge 4	-	24 months’ imprisonment
Charge 6	-	29 months’ imprisonment
The 2nd applicant
Charge 1	-	21 months’ imprisonment
Charge 6	-	21 months’ imprisonment

51.We order that for both applicants all sentences for all their offences be served concurrently making a total sentence for the 1^st applicant of 29 months’ imprisonment and for the 2^nd applicant of 21 months’ imprisonment.  We further order that these sentences be served wholly concurrently with their existing sentences that were imposed by Judge Browne.

(Michael Lunn) Vice-President

(Ian McWalters) Justice of Appeal

Ms Audrey Parwani SPP, of the Department of Justice, for the respondent

Ms Wong Sze-wing Barbara, instructed by DLA, for the applicants

---

[1] See HKSAR v Yuen Gang Shing CACC 303/1997; unreported, 12 November 1997.

[2] See HKSAR v Chan Lap Pui [2007] 2 HKC 342.