HKSAR v. KWONG TO MING

cacc 222/2017 [2018] HKCA 16 in the high court of the hong kong special administrative region court of appeal criminal appeal no 222 of 2017 (on appeal from DCCC NO 296 of 2017)

BETWEEN

HKSAR Respondent and Kwong To Ming (鄺道明) Applicant Before: Hon Macrae JA in Court Date of Hearing: 10 January 2018 Date of Judgment: 10 January 2018

J U D G M E N T By a notice of application for leave to appeal made by way of Form XI and filed on 21 July 2017, the applicant seeks leave to appeal against the overall sentence of 33 months’ imprisonment imposed on him in the District Court by HH Judge Casewell (“the judge”) on 11 July 2017, following his plea of guilty on the same day to a single charge of burglary, contrary to section 11(1)(b) and (4) of the Theft Ordinance, Cap 210. The facts The applicant committed what has been referred to as a “walkin burglary” of a public housing unit at an estate in Sham Shui Po, Kowloon. At 2:50 pm on 12 February 2017, the occupant of the unit (PW1), who was at the time at home with her two young daughters, heard some sounds from the entrance and saw the applicant emerging from the bedroom holding two of her handbags. When she shouted at the applicant, he immediately rushed out to the lobby with the two handbags. Pursued by PW1 and her neighbour, PW2, who joined the chase after hearing PW1’s shout for help, the applicant was eventually subdued. PW1 retrieved her handbags, one of which contained HK$20 inside a red packet. The applicant was subsequently arrested. On the following day, the applicant admitted under caution in a video recorded interview that he had entered the flat in order to steal when he saw that the main door and the iron gate had been left unlocked. Since he saw a

girl sitting in the living room, he therefore immediately went into a bedroom, grabbed the two handbags in question and fled. He was chased by PW1. He ran downstairs and was stopped by a man upon reaching the playground area. He admitted the theft of the two handbags, one containing a HK$20 note, from PW1’s bedroom. The value of the two handbags was together about HK$500. Reasons for sentence The applicant was 63 years of age at the time of the offence and unemployed. He had had 35 previous appearances before the courts for a multitude of offences, including numerous offences of dishonesty such as robbery, burglary and attempted burglary, going equipped for stealing and theft. In particular, he had previously committed 17 offences of burglary and 2 of attempted burglary. The most recent burglary and attempted burglary convictions were in 2010 and 2012, for which he had been sentenced to 2 years and 4 months’ imprisonment and 4 years’ imprisonment respectively. The judge found that, while the applicant’s conduct might be described as opportunistic, he was also “a professional burglar” with an extensive record of similar offending, who had clearly not been deterred by his previous sentences. The judge accordingly held that the applicant’s professionalism and record were an aggravating feature of sentence. The judge adopted 3 years’ imprisonment as an appropriate starting point in

respect of a domestic burglary, and then enhanced the starting point by 12 months’ imprisonment for the aggravating feature referred to. The notional sentence after trial was then discounted by a full onethird for his guilty plea to 32 months’ imprisonment. Since the applicant was, at the time of the commission of the offence, in breach of a suspended sentence of 2 months’ imprisonment suspended for 2 years imposed in December 2015 in respect of the possession of a dangerous drug, the judge ordered that 1 month of that sentence should be served consecutively to the sentence for the burglary offence. The applicant was therefore sentenced to an overall period of 33 ‍months’ imprisonment. Grounds of appeal In his Form XI, the applicant stated that he had merely taken the two handbags from the premises when the opportunity presented itself; and that one handbag only contained HK$20. He complains that the sentence is excessive. Respondent’s submissions Mr Andy Lo, on behalf of the respondent, submitted that, although an opportunistic “walkin burglary” may in certain circumstances warrant a lesser sentence than the normal sentence for a premeditated burglary, the judge in the present case has correctly characterised the applicant as a persistent and professional burglar, with a recognisable modus operandi, for whom conventional sentences of imprisonment provide no deterrence

whatsoever. In that regard, Mr Lo referred me to the facts in DCCC 1341/2009 and DCCC 294/2012, both of which cases also concerned the same applicant before me, demonstrating that the applicant has a particular habit of entering occupied but unlocked public housing units. It is submitted that in view of his recidivism, neither the starting point, nor the enhancement, nor the addition of part of a suspended sentence can be faulted. Consideration Whilst, in some circumstances, a person who is attracted by an open door to enter unoccupied nondomestic premises that he would not otherwise have entered, and from which he removes an item of little value, might possibly be treated more leniently than if he had deliberately broken into those premises (see, for example, the facts in HKSAR v Cheung To Ming), such considerations do not apply to a persistent and professional burglar with a record of no less than 17 burglaries and 2 attempted burglaries stretching back some 37 years. It is one thing to be tempted into burglary on one occasion by an open door: it is another to go looking for open doors to burgle. Moreover, it is a particularly brazen and alarming incidence of the offence when the occupants of domestic premises, in this case a woman and her two young children, are present at the time and when the burglar runs the obvious risk of encountering the occupants, as he did here. I

can see no reasonably arguable ground of appeal that the judge’s starting point or notional sentence after trial for what was a domestic burglary with the occupants present in the premises at the time, by a defendant with an appalling history of similar offending and other offences of dishonesty, is either manifestly excessive or wrong in principle. Nor can there be any complaint about the imposition by the judge of the suspended sentence of 1 month’s imprisonment: indeed, the applicant could not have complained if the suspended sentence had been activated in full. The application for leave to appeal is refused. The applicant is duly advised that he has the right to renew his application for leave to appeal against sentence to the Court of Appeal, but he is also warned of the consequences of so doing, which may include a direction for any loss of time spent in custody pending his appeal, if the Court of Appeal were to come to the view that there was no justification for the renewal of the application. (Andrew Macrae) Justice of Appeal Mr Andy Lo PP, of the Department of Justice, for the Respondent The Applicant appeared in person