HKSAR v. Chan Yuen Shing and Another

CACC 281/2014

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 281 OF 2014

(ON APPEAL FROM DCCC NO. 433 OF 2014)

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BETWEEN

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REASONS FOR JUDGMENT
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Hon Lunn VP (giving the Reasons for Judgment of the court) :

1.The applicants sought leave to appeal against the sentences imposed upon them by District Court Judge C P Pang on 6 August 2014, following their pleas of guilty to an offence of burglary on 27 January 2014, contrary to section 11(1)(b) and (4) of the Theft Ordinance, Cap. 210, for which they were each sentenced to 2 years and 4 months’ imprisonment. At the hearing we allowed the appeal, quashed the sentences and in their place imposed sentence of 2 years and 2 months’ imprisonment on each applicant. We said that we would give our reasons for doing so in due course. That, we do now.

The Facts

2.On or about 27 January 2014 the applicants and a co-defendant, entered as trespassers “Zhing Nong Hong Food Limited”, G/F, No. 21A Tai Ho Road, Tsuen Wan, New Territories, and stole $182,239.  Police officers conducting an ‘anti-burglary’ operation near the premises had observed the applicants wandering outside the Shop and then meeting up with the co-defendant several times in a nearby McDonald’s Restaurant in the late evening of 26 January and the early hours of 27 January 2014.  Finally, shortly after 03:00 the applicants were intercepted by police officers on their return to the Restaurant.

3.The 1^st applicant was found to have $33,020 in a green plastic bag, $24,000 in his jacket, $23,520 in his wallet and three mobile phones in his trousers. The 2^nd applicant was found to have $23,660 in his wallet, $38,180 in his trousers and two mobile phones.  The co-defendant was found to have $48,500 in his jacket, $2,440 in his wallet and two mobile phones.

4.Under caution, they each admitted committing the offence.  The 1^st applicant said that he bought equipment for the burglary and discussed the plan to burgle the Shop with the other two defendants on 26 January 2014.  He entered the Shop with the 2^nd applicant, whilst the co-defendant kept watch.  The stolen money was divided into three shares.

5.The 2^nd applicant admitted that he prised open the ventilation fan and the cashier safes.  He confirmed that the co-defendant was a lookout who sat near the windows inside the Restaurant. 

6.Members of the staff of the Shop identified the applicants and the co-defendant in an identification parade.  The call records of their mobile phones indicated that the 1^st applicant had made five phone calls to the 2^nd applicant and the co-defendant before and after the burglary.

Reasons for sentence

7.In sentencing, the judge noted that the 1^st applicant was aged 60 years and had 19 criminal convictions, of which 17 were offences of dishonesty and 15 of which were for offences of burglary.  The 2^nd applicant was aged 59 years and had 18 criminal convictions, of which 15 were for offences of dishonesty and 11 for offences of burglary.  On 24 September 2012 they were each sentenced to 26 months’ imprisonment for an offence of burglary, which they had committed together.  They were released from prison on 24 October 2013, three months before the commission of the instant offence.

The starting point for sentence

8.The judge noted that “the proper starting point for a single burglary of non-domestic premises committed by a first offender of full age where there are no aggravating or mitigating features is 2½ years’ imprisonment.”  However, he went on to describe what he determined to be aggravating features in the commission of the offence:[1]

“ The three defendants were acting in concert in the commission of the offence. Tools had been bought and used. Ventilation fan was forced open and a safe was prized open. Although there was no evidence of the knowledge of amount of money they could steal, the amount of cash actually stolen was large indeed. Fortunately, all the stolen money was recovered. The offence was committed over a period of hours. And, more importantly, all the three defendants have appalling criminal record. They are properly regarded as persistent offenders.”

9.In the result, the judge stipulated a starting point for sentence for the applicants of 3½ years’ imprisonment.  To reflect their pleas of guilty, the judge afforded them a one-third discount from the starting point.  Having determined to reject submissions that their financial and family circumstances, together with their conditions of health as mitigating factors, he sentenced each of the applicants to 2 years and 4 months’ imprisonment. 

Grounds of appeal against sentence

10.On behalf of the applicants Mr C S Fu, who appeared on their behalf in the lower court, advanced a single ground of appeal, namely that the judge erred in adopting a starting point of 3½ years’ imprisonment for a burglary of non-domestic premises burglary.  He submitted that an enhancement from the usual tariff for a non-domestic burglary of 2½ years’ imprisonment of 12 months’ imprisonment, namely 40%, was manifestly excessive.

11.In support of his arguments, Mr Fu relied on a number of judgments of this Court as comparables and submitted that the sentence imposed on the applicants should be reduced in HKSAR v Tang Wing Chung[2], a burglary of domestic premises committed without any circumstances of aggravation, this Court held that the judge had erred in increasing the usual starting point of 3 years’ imprisonment by 50% to 4½ years’ imprisonment to reflect the fact that the applicant was a persistent offender, “with 12 previous convictions many of which are similar offences” and that the “offence was committed about one week after his discharge from jail.”  Yeung JA in the judgment of this Court said that the appropriate enhancement of sentence was 6 months’ imprisonment.

12.In HKSAR v Lau Hiu Man[3] this Court held that the judge’s enhancement of the usual starting point for sentence for domestic burglary of 3 years’ imprisonment by ⅓ to 4 years’ imprisonment for each of two charges of burglary to reflect the circumstances of the commission of the offence, namely that the premises were occupied and that the two burglaries were of the same premises, and the fact that the applicant had 24 previous convictions for burglary and committed the offence whilst on bail was excessive.  In the judgment of the Court, McWalters J, as he was then, determined that an enhancement from that taken as a starting point for sentence of 9 months’ imprisonment, namely 25%, was appropriate.

The respondent’s submissions

13.For the respondent, Mr Eddie Sean accepted that an enhancement of 40% from the starting point was paid of structural increase.  Nevertheless, he reminded the Court that the applicants had been released from prison, where they were serving a sentence for another offence of burglary, only three months prior to the commission of this offence.  Further, he invited the Court to regard their criminal records as “appalling”.

A consideration of the submissions

14.The judge was entitled to take into account the factors in aggravation of the commission of the offence, namely that the two applicants and the co-defendant were acting in concert, that equipment for burglary had been bought and used in the commission of the offence and that entry had been forced into the premises and the cashier’s safe.  Similarly, he was entitled to have regard in sentencing to what, understandably, he described as the appalling criminal record of the applicants.  The 1^st applicant had a record of convictions for burglary that began in 1984, whereas the 2^nd applicant’s criminal record in respect of burglary began in 1977.  As the judge noted they had been released from prison in respect of their last convictions for burglary only three months before the commission of the instant offence.  Whilst they were obviously persistent offenders, as he described them to be, they were spectacularly unsuccessful in their chosen career.

15.In determining to enhance the usual starting point for sentence for a burglary of non-domestic premises from 2½ years’ imprisonment to 3½ years’ imprisonment the judge had regard to two factors of aggravation: namely, the circumstances of the commission of the offence and the criminal records of the applicants.  He did not indicate what increase of sentence he attributed to each of the two factors.  Although there were three burglars involved in the commission of the offence, the circumstances of the burglary were clearly not particularly sophisticated.  It appears that nothing more sophisticated than chisels were used to prise open the cashier’s safe.  Entry was forced, but only by simply dismantling the ventilation unit.

16.Whilst it is entirely appropriate in determining the appropriate starting point to be taken for sentence to have regard to the fact that a defendant is a persistent offender, in particular in respect of a specific offence or kind of offence, care has to be taken to ensure that the defendant is not punished twice for his misbehavior.  The enhancement of the sentence, from the usual sentence to be visited for the commission of that offence, must be proportionate.  Each case is different.  For purposes of determining the appropriate sentence in these circumstances we do not find it helpful to have regard to the decisions of this Court in which the particular circumstances obtaining in other cases have been addressed.

Conclusion

17.In the circumstances of this case, we were satisfied that enhancement of sentence, to reflect the twin factors of aggravation, of 40% was manifestly excessive.  In our judgment, 9 months’ imprisonment was the appropriate enhancement of sentence from the usual sentence of 2½ years’ imprisonment for a non-domestic burglary.  Accordingly, 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 2 years and 4 months’ imprisonment imposed on the applicants.  In their place, we imposed sentences of 2 years and 2 months’ imprisonment on each of the applicants.

Mr Eddie Sean, SADPP of the Department of Justice, for the respondent

Mr Fu Chong Sang, instructed by Huen & Partners, assigned by Director of Legal Aid, for the 1^st and 2^nd applicants

[1] Appeal Bundle; page 14, paragraphs 26-27.

[2] HKSAR v Tang Wing Chung (CACC 146/2002; unreported, 25 September 2002).

[3] HKSAR v Lau Hiu Man [2013] 2 HKLRD 862.