HKSAR v. Chan Ka Chung

CACC 75/2015

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 75 OF 2015

(ON APPEAL FROM DCCC NO. 1057 OF 2014)

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J U D G M E N T

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1.The applicant seeks leave to appeal against the sentence of 20 months’ imprisonment imposed on him by a District Court Judge G. Lam on 11 February 2015 following his conviction on his plea of guilty on that date to a single charge of burglary on 5 November 2014, contrary to section 11(1)(b) and (4) of the Theft Ordinance, Cap. 210.

The facts

2.At 9:15 a.m. on 5 November 2014 the applicant was intercepted by PC 14342 as he was squatting outside the entrance to a Tea shop on the ground floor, 483 Nathan Road, Yau Ma Tei.  The roller shutter to the shop was open.  The applicant was holding an electronic scale and a tray valued together at $900, which the owners of the shop identified as having come from inside the shop, which roller shutter had been pulled down and locked at 10:00 p.m. the previous evening.  The key had been hidden in the roller shutter.

3.The applicant told the police officer that, having found the key to the roller shutter in the lock, he had opened the lock, raised the shutter and entered the premises removing the two items found in his possession.

Reasons for sentence

4.In his reasons for sentence, the judge noted that the applicant was 39 years of age and that he had 41 previous criminal convictions, including: one for burglary; 29 for theft; two for going equipped to steal; and two for deception related offences.

5.The judge noted that the normal starting point for non-domestic burglary is 2½ years’ imprisonment.  However, he acknowledged that the applicant had not broken into the premises.  He said that he was prepared to treat the circumstances of the commission of the offence as a “borderline opportunistic burglary”.  In doing so he adverted to the judgment of this Court in HKSAR v Wong Wing Kam[1], in which one tenant in communal premises had used a plastic card to open the door to the room of another tenant from whose premises he stole a packet of lemon tea.  This Court allowed the appeal against a sentence of 12 months’ imprisonment imposed by the judge and in its place imposed a sentence of 10 months’ imprisonment, stating that the appropriate starting point in those circumstances was 15 months’ imprisonment.

6.Having regard to the applicant’s criminal record, the judge said that it was “appalling” and primarily related to theft offences.  Furthermore, he noted that the applicant had been released from a prison sentence that he was serving for an offence of fraud only one month prior to the commission of this offence.  In those circumstances, he said that the court had “all the reasons to raise the starting point as deterrence”.  In the result, the judge said that any mitigating benefit to the applicant or the circumstances of the burglary being opportunistic was offset by the increase in sentence which was merited by the applicant’s criminal record.

Starting point for sentence

7.The judge stipulated a starting point to sentence of 2½ years’ imprisonment.

Discount

8.The judge afforded the applicant a discount of one-third from the starting point taken for sentence, to reflect his plea of guilty.  In the result, he imposed a sentence of 20 months’ imprisonment.

Ground of appeal against sentence

9.In his home made ground of appeal against sentence attached to Form XI, by which he gave the court notice on 2 March 2015 of his application for leave to appeal, the applicant asserted simply that the “sentence was excessively long”.  Today, the applicant asked to be given a chance.  He said that he had reduced mobility in his left wrist and was suffering from a psychiatric illness, for which he was being treated as an outpatient, which led to insomnia.

10.The respondent opposed the application.

A consideration of the submissions

11.As the judge noted, in determining that the circumstances of the commission of the burglary were such that it “may be a borderline opportunistic burglary”, since “ the key was hidden underneath the roller shutter, the defendant still had to locate it before he could use it”.  By contrast, in HKSAR v Cheung To Ming[2] the applicant, an illegal immigrant, had entered non-domestic premises, to which the door had been left ajar, and stolen two packets of noodles.  This Court quashed a sentence of 20 months’ imprisonment imposed for the burglary by the District Court Judge, the applicant having pleaded guilty.  In its place, having stipulated a starting point of 18 months’ imprisonment, this Court imposed a sentence of 12 months’ imprisonment.   

12.There is an obvious difference between entering premises the door of which has been left open and searching successfully for the key to the premises which had been concealed unsuccessfully nearby.  In my judgment the judge was overgenerous in describing the circumstances of the commission of the offence as being such that it “may be a borderline opportunistic burglary”.

13.The judge was correct to describe the applicant’s criminal record as “appalling”.  Whilst the burglary, for which he was ordered to serve 200 hours of community service, was committed when he was a teenager, many of the offences of theft were committed when the applicant was in his early 30s.  In October 2010, he was convicted of attempting to obtain property by deception and using a false instrument.  On appeal, this Court quashed the original sentences and imposed sentences of 2 years and 4 months’ imprisonment on each charge.  In 2012, the applicant was convicted of seven offences of theft.  In 2013, the applicant was convicted of four offences of theft and attempted theft.  In 2014, the applicant was convicted of theft by way of shoplifting and sentenced to six months’ imprisonment, followed by a subsequent conviction for going equipped to steal and finally a conviction for fraud, for which he was sentenced to five months’ imprisonment.

14.In my judgment, in all those circumstances, in particular having regard to the fact that the applicant had been released from prison only a month prior to the commission of this offence, the judge ought to have enhanced the starting point for sentence.

15.In the result, in my judgment the sentence imposed on the applicant was unjustifiably lenient.

Conclusion

16.Accordingly, the application for leave to appeal against sentence is refused.

17.The applicant is advised that, following the refusal of his application by the single judge, he may renew his application for leave to appeal against sentence, if he wishes to do so, by filing Form XIII of the Criminal Appeal Rules, Cap. 221 within 14 days.  However, he is informed that if the Court of Appeal comes to the conclusion that there was no justification for the renewal, it has power to make a direction for the loss of time, namely in respect of some or all of the time that the applicant has served in custody for these offences since he filed his notice of his application for leave to appeal pending the hearing of his application.

Ms Mickey Fung SPP, of the Department of Justice, for the respondent

Applicant appeared in person

[1] HKSAR v Wong Wing Kam (CACC 394/2010, unreported, 28February 2011) .

[2] HKSAR v Cheung To Ming.