HKSAR v. IU WAI SHUN

bjbj ore: Hon Stuart-Moore VP, Beeson J and McMahon J in Court Date of Hearing: 15 November 2007 Date of Judgment: 15 November 2007 Date of Reasons for Judgment: 22 November 2007 _______

R E A S O N S F O R J U D G M E N T _______ Beeson J (Giving the judgment of the Court): This Applicant was convicted after trial before Judge Geiser in the District Court on one charge of theft, contrary to section 9 of the Theft Ordinance, Cap. 210 and one charge of burglary, contrary to section 11(1)(b) of the same ordinance. He was sentenced to 12 months imprisonment for the theft charge and 3 years imprisonment for the burglary charge; 6 months of the sentence on the theft charge was ordered to run consecutively to the sentence on the burglary charge making a total sentence of 3 years imprisonment. The Applicant sought leave to appeal against both conviction and sentence. He appeared in person on 14 November 2007 and advised that he did not wish to proceed with his application relating to conviction. We dismissed his appeal against conviction. The Applicant was represented by counsel, Mr Jackson Poon on his application relating to sentence. Having heard submissions we dismissed the application for leave to appeal, advising that we would hand down written reasons at a later date. These are our reasons. Facts of the Case The prosecution evidence was that the Applicant had prised open the door of a van parked outside a metal shop and had stolen 7 keys from a concealed compartment in the van. He used the keys to enter the metal shop where he stole a

large number of items, as particularised in Charge 2. Police officers saw him walking in the street at about 3.50 am, pulling a nylon bag which was found to contain property stolen from the shop. Police made enquiries, searched the Applicant and found the keys in his trouser pocket. A video interview was admitted as evidence after a voir dire. In that interview the Applicant claimed that he had picked up the items in the bag at a refuse collection point. He claimed that he had intended to hand over the items he had found to the police and that he was taking them to the police station when he was intercepted. The Applicant denied that the keys had been found in his trouser pocket, suggesting that they were probably in the nylon bag when police stopped him. There was a can of tuna fish in the bag which the applicant said had been given to him by a friend the evening before. However, when the friend gave evidence for the prosecution (PW5), she denied ever having given the applicant a can of tuna. In Admitted Facts put before the court, it was stated that the van door had been prised open and the keys, which included a key to the shop, were stolen from inside a concealed compartment in the van. It was also admitted that a burglary took place at the shop between 8 p.m. on 21 August 2006 and the early hours of 22 August 2006. The Applicant did not give evidence or call witnesses.

Although the video recorded interview was contested, the Applicant appeared to rely for his defence on the account that he had given in that interview. There was no direct evidence against the Applicant; the prosecution case was circumstantial and reliant on recent possession. The judge found the evidence as a whole overwhelming. The Applicant had been found in the early morning in possession of a stolen bag, containing many items of stolen property, very shortly after the burglary and while still in the vicinity of the burgled premises. He was wearing gloves and a set of keys to the premises was found in his pocket. His explanation of how he came by the stolen items was ridiculous. Grounds of Appeal against Sentence The Applicant s original written ground of appeal was that his sentence was too heavy. Mr Poon, had a single complaint; that the sentences for the first and second charges should have been ordered to run wholly concurrently, because they arose out of the same transaction. Mr Poon relied on R v Lam Ching CA 629/1987, to support this proposition, a proposition with which the Respondent had no quarrel. Mr Poon submitted to the judge in mitigation that the Applicant s last conviction for burglary had been 6 years before and since that time he had been convicted of only two relatively minor offences. The judge, when sentencing, noted the Applicant s poor criminal record

which started in 1993 and included 3 thefts; 2 attempted thefts; 2 burglaries; 3 attempted burglaries; unlawful possession and possession of another person s identity card. The judge took a starting point of 2 years imprisonment for the burglary charge, as it was committed on commercial premises. He found the Applicant s record was an aggravating feature which justified an increased starting point. He added six months to that starting point and sentenced the Applicant to 3 years imprisonment. When considering sentence on the theft charge the judge commented; This is of course a completely separate offence to charge 2 but connected in the sense that it enabled the commission of the burglary. It seems to me that the defendant must have had some information or knowledge as to the existence of the keys being inside the vehicle. I am satisfied that a sentence of 12 months imprisonment is the appropriate sentence for this offence. Under normal circumstances, a sentence of 12 months ought to be ordered to run consecutively to the sentence of 3 years ... but due to the question of totality of sentence, I order that 6 months of the sentence on the theft charge is to run consecutively to the sentence that I have imposed on the burglary charge and the remaining balance of 6 months concurrently, arriving at a total sentence of 3 years imprisonment in all, Mr Poon did not take issue with

the individual starting points, nor did he complain about the increased starting point adopted for the burglary charge. He submitted that because the keys were stolen solely for the purpose of committing the burglary, the sentences should be concurrent, as they were part of the same course of conduct and that a total sentence of 3 years was too severe. The Respondent agreed that the judge could have treated the two offences as arising from one continuing course of conduct and ordered them to run wholly concurrently. However, the Respondent submitted that the real issue was whether the overall sentence was manifestly excessive. This was a planned operation, without any mitigating factors. Totality considerations did not show it was too high a sentence. On that basis the Respondent argued that the sentence should remain unchanged. In Attorney General v Cheung Pit-yiu [1989] 2 HKLR 12 Cons VP stated that concurrent sentences are only appropriate for offences that can be said to have been committed in the course of a single transaction . Although the theft of the keys was a separate transaction, it was an offence that could be regarded as closely linked to the burglary, being committed to facilitate the burglarious entry to the metal shop. Nevertheless this rule is not an inflexible one. Sentences which are partly concurrent and partly consecutive are passed in all levels of court

and enable a proper balancing of totality and criminality to be achieved. Such sentences for closely linked offences are not inappropriate, as long as the final sentence achieves the correct totality. We do not find the overall sentence excessive given the nature of the offence, the previous record of the Applicant and the complete absence of mitigating factors. The Applicant had benefitted from the judge s adjusting of the 2 sentences so that half only of the sentence on the theft charges was ordered to run concurrently. In our view it lay within the discretion of the judge as to whether the sentences should be wholly or partly concurrent. He did so with totality in mind. We can see no justification for adjusting the sentence further. Accordingly, we dismissed this application for leave to appeal against sentence. (M. Stuart-Moore) (C-M Beeson) (M.A. McMahon) Vice President Judge of the Court of First Instance Judge of the Court of First Instance Mr Jackson Poon Chin-ping, instructed by Ellen Au & Co., assigned by D.L.A., for the Applicant Mr John Reading, S.C., SADPP and Ms Mickey Fung, SGC (Ag.), of Department of Justice, for the Respondent

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