HKSAR v. LUI CHO YIU

CACC 48/2021 [2021] HKCA 1233

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL CRIMINAL APPEAL NO 48 OF 2021 (ON APPEAL FROM DCCC NO 648 OF 2020) ______

HKSAR Respondent and

LUI CHO YIU Applicant ______ Before: Hon M Poon JA in Court Date of Hearing: 13 August 2021 Date of Judgment: 13 August 2021 Date of Reasons for Judgment: 7 September 2021 __________

REASONS FOR JUDGMENT __________ The applicant was convicted on his own plea to one count of burglary, contrary to section 11(1)(b) and (4) of the Theft Ordinance, Cap 210. He was sentenced by HH Judge Tam (“the judge”) in the District Court to imprisonment for 2 years and 1 month on 26 February 2021. By a Form XI Notice filed on 5 March 2021, the applicant sought leave to appeal against his sentence. Having heard the application, I refused leave and now give my reasons. Facts admitted by the applicant revealed that the applicant (D1) and D2 broke into a supermarket and stole seven bags of coins ($45,000) and 5 cartons of cigarettes (valued at $150,000) placed at the cashier counter and the storage room at the small hours in the morning on 18 May 2020. The applicant was captured by CCTV to have entered the shop wearing a mask and a pair of gloves. He had with him a backpack, two long screwdrivers and a torch. He searched around the shop areas including the cashier counter and storage room. Thereafter he pushed upwards another CCTV camera inside the shop, entered the storage room and took out a trolley. He then covered that CCTV camera. After searching inside the shop for some time, the applicant and D2 were seen to push a trolley containing the stolen properties out of the shop. 3 carton boxes, which were later recovered, were concealed by D2 in the

flower trough in a nearby carpark, 2 other carton boxes were concealed by the applicant and D2 in the bushes. The applicant was arrested on 20 May 2020. Under caution he admitted to have committed the burglary. He said that he had visited the shop before and described how he prized open the door of the shop and damaged a CCTV. Reasons for sentence The judge took into account the criminal record of the applicant, namely, 20 previous court appearances culminating in 32 sentences, including 7 burglaries and 15 other offences relating to dishonesty. The present offence was committed only two months after his release from prison for his last offence. The judge enhanced the starting point of 2 ½ years by 9 months to 3 years and 3 months. The applicant was given the full one-third discount for his plea, and a further one month for his old age and sentenced him to 2 years and 1 month’s imprisonment. Grounds of appeal At the leave hearing, the applicant complained that the sentence was too heavy. He said that he should have received 20 months on his plea to burglary of non-domestic burglary. He submitted that although he had an unattractive criminal record, he managed to keep himself out of trouble between 2002 and 2014. He claimed that D2 was the mastermind and he was induced into committing the present offence. He took no part in the disposal of the stolen properties. Respondent’s

reply It was submitted that the judge correctly adopted 2 ½ years as starting point for non-domestic burglary. The only question was whether the 9 months enhancement was appropriate. The respondent submitted that the judge had clearly taken into account that: The burglary was planned; It was committed with D2; The applicant was clearly a persistent and professional offender; The present offence was committed shortly after his release from prison. The respondent further brought to the attention of the court that instead of keeping himself out of trouble between 2002 to 2014, the criminal record shows that he was convicted of yet another burglary in 2004. It was submitted that the judge was generous in giving the applicant a further one month discount to the one-third. The respondent contended that the sentence has properly reflected the culpability of the applicant and therefore the appeal is not reasonably arguable. Discussion In HKSAR v Cheng Wai Kai, Yeung JA (as he then was), giving judgment of the court, said: “14. The proper starting point for sentence in a case of burglary of non-domestic premises is 30 months’ imprisonment (See R v Wong Man unrep CACC 372/1992) 15. The starting point can be adjusted upwards if there are aggravating circumstances such as; (1) the offence is carefully planned and skilfully executed involving the use of heavy instrument or equipment; (2)

the offence is committed by two or more people; (3) the offence targets at substantial premises and involves substantial properties; (4) the offender is a professional burglar and not just an opportunist; (5) the offender has previous convictions, particularly previous conviction of similar nature; and (6) the offender commits multiple offences.” This appeal turns on very narrow grounds, namely, whether the enhancement of 9 months was excessive in the circumstances of the present case. I agree that the aggravating features identified by the respondent warranted an upward adjustment of the starting point. There is no arithmetic formula of the enhancement of sentence: HKSAR v Chan Kwong Chun,. In that case, the deputy district judge increased the usual starting point for non-domestic burglary from 2 ½ years to 3 ½ years based on the very bad record of the applicant. On appeal, Burrell J, giving the judgment of the Court, said: “6. … It is plain that the judge considered the applicant to be a professional burglar who was a menace to society. We think he was perfectly entitled to come to this view and make a meaningful increase in the starting point as a deterrent.” The Court was of the view that the enhancement should be looked at in terms of time rather than as a percentage. The Court viewed the 12 months enhancement as reasonable in this light: that had the applicant not been a

professional burglar he would have received 20 months’ imprisonment, after the enhancement and the discount he had received an extra 6 months. In the present case, after the enhancement and discount, what the applicant received was 25 months, that is, 5 months more than the 20 months absent any aggravating features. The one extra month discount for his old age was more than generous. I am of the view that the appeal is not reasonably arguable, and accordingly his application for leave to appeal against sentence is refused. The applicant is reminded of his right to renew his application for leave to the Court of Appeal, but if he is minded to do so, he should bear in mind that he may face the consequences of a direction for any loss of time spent in custody pending his appeal, if the Court were to come to the view that there was no justification for the renewal of his application. (Maggie Poon) Justice of Appeal Ms Audrey Parwani, SPP of the Department of Justice, for the respondent The applicant appeared in person