HKSAR v. ZENG QING

CACC 67/2020 [2020] HKCA 792

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL CRIMINAL APPEAL NO. 67 OF 2020 (ON APPEAL FROM DCCC NO. 848 OF 2019) ____

BETWEEN

HKSAR Respondent and Zeng Qing（曾清） Applicant ____ Before: Hon Anthea Pang J in Court Date of Hearing: 22 September 2020 Date of Judgment: 22 September 2020 ____

J U D G M E N T ____ Introduction On 14 May 2020, the applicant pleaded guilty to four charges of burglary before His Honour Judge Dufton (the Judge) sitting in the District Court. Charges 1, 2 and 4 were burglaries of non-domestic premises which included a restaurant, a café and a laundry shop. Charge 3 was a burglary of domestic premises and it happened in the small hours when a couple was sleeping in the room. The applicant was respectively sentenced to terms of imprisonment of 22 months; 20 months; 26 months; and 20 months for the four charges. Ordering partially consecutive and partially concurrent terms to achieve the appropriate totality, the Judge sentenced the applicant to a final total term of 38 months. On 26 May 2020, the applicant filed his Form XI, seeking leave to appeal against his sentence on the ground that it is too heavy. The facts For charge 1, CCTV installed in the restaurant captured two males entering the premises at about 5:00a.m. on 26 March 2019 and ransacking the place. A cash box containing about $10,000, two mobile phones and a television were taken away. After the applicant was arrested, he admitted in a cautioned video-interview that he burgled the restaurant with two other males and that he was one of the persons captured by the CCTV. For charge 2, at about 6:30a.m. on 29 March 2019, when the owner returned to his café, he found that

the lock on the café’s inner backdoor had been prized open and $5,000 stolen from the cashier machine. CCTV captured the applicant climbing onto the patio at around 2:30a.m. that morning, then entering the café and stealing the cash from the machine. The applicant again admitted in the interview that he was the one seen in the CCTV. For charge 3, a couple went to bed at around 11:30p.m. on 5 April 2019, leaving the toilet window open for ventilation. At 6:45a.m. the following morning, the lady discovered that things in the toilet had been moved and that their personal belongings, including two iPhones, two wallets, about $3,000 cash, two HKID cards, and some credit cards, were missing. On 10 April 2019, the couple was informed that the stolen credit cards had been used in the total sum of $4,223.6 and that the personal particulars of the male occupant had been used to obtain two credit cards. One of the cards was used on 18 April 2019 for a transaction of $15,000. When the applicant was arrested, he was found in possession of one of the two wallets missing from the room. The applicant later admitted that he was the one seen in the CCTV and that he had climbed up the water pipes, entering through the open toilet window and stealing the items therein. Finally, for charge 4, between 9p.m. on 9 April 2019 and 8 a.m. on 10 April 2019, the roller shutter box of the subject laundry

shop was prized open with cash of $800 stolen from the cashier machine. Subsequently, the applicant admitted in a video-interview that he had picked up a screwdriver and prized open the roller shutter box to steal in the shop. The applicant’s personal circumstances and mitigation The applicant was aged 23 and had two previous convictions at the time of sentence: one of assault occasioning actual bodily harm and one of possession of Part I Poison in respect of which he was respectively put on probation in 2012 and was given a suspended term of 40 days in 2017. In mitigation, counsel for the applicant submitted that he has been suffering from epilepsy and that he committed the offences because of financial difficulty. Counsel also emphasized that the applicant co-operated with the police by making frank admissions. In her oral submissions, counsel further sought to convince the Judge that these were opportunistic type of burglaries. Reasons for Sentence The Judge adopted a starting point of 30 months for charges 1, 2, 4 and one of 36 months for charge 3. In respect of the claim of opportunistic burglaries, it is clear from the transcript that when this was canvassed, the Judge did not accept it and had told counsel the matters which went contrary to such a claim. When passing sentence, the Judge again referred to this submission of counsel and said, “Ms Lam submits the burglaries

were opportunistic. I do not agree. Three persons were involved in the first burglary. In the second burglary the defendant climbed over a metal railing to access the inner backdoor of the café. The defendant climbed the water pipes to access the toilet window in the third burglary. The defendant prized open the roller shutter box in the fourth burglary.” For charge 1, after adopting a starting point of 30 months, the Judge enhanced it by 3 months, making it one of 33 months, as the burglary was committed by more than one person. For charge 3, given that the burglary of the residential premises took place in the small hours when the premises were occupied, the Judge regarded it as an aggravating factor and enhanced the starting point of 36 months by 3 months, making it one of 39 months. As the applicant pleaded guilty at the earliest opportunity, the Judge afforded him the full one-third discount for each charge. Further, in respect of charge 4 where the applicant’s admission was the only evidence supporting the charge, the Judge referred to the court’s discretion in taking that into account when considering the totality of the sentence. In the end, the Judge passed an overall sentence of 38 months for the four burglaries to which the applicant pleaded guilty: “Taking into account all the circumstances of the four burglaries including that the burglaries were committed over a

period of sixteen days; the total value of the stolen property and the defendant’s co-operation with the police, I am satisfied that a total sentence of 3 years and 2 months’ imprisonment properly reflects the defendant’s criminality on the four charges and takes into account the defendant’s personal circumstances and the seriousness of the offences.” Grounds of appeal against sentence In his application form, the applicant’s only complaint is that the sentence is too heavy. This afternoon, the applicant supplemented that for charge 3, the Judge wrongly enhanced the sentence by 3 months because of the alleged planning involved. Consideration I could detect nothing irregular from my perusal of the documents in this case. On the contrary, the transcript and the Judge’s Reasons for Sentence illustrate that the Judge had carefully considered the relevant authorities, including the tariffs for burglary of domestic and non-domestic premises; the enhancement to reflect the aggravating features of committing burglaries with two or more persons; as well as committing burglaries of domestic premises in the small hours when the offenders would expect that the premises were occupied. The Judge also took into account the fact that the applicant was co-operative and that for charge 4, the applicant’s admission was the only evidence supporting it. In my view, the Judge took a measured

approach in this sentencing exercise by identifying the aggravating and mitigating features before arriving at the final totality. The overall term of 38 months could not, in any way, be said to be wrong in principle or manifestly excessive. In relation to the applicant’s complaint about the incorrect enhancement for charge 3, it would appear to be a misunderstanding on his part. The Judge did not enhance the starting point because of the sophistication or planning involved in charge 3 but because of the fact that the applicant entred the premises in the small hours. There is therefore simply no merit in this additional ground of complaint. Conclusion I therefore do not consider that the grounds put forth by the applicant are reasonably arguable and I refuse the applicant’s application for leave to appeal against sentence. The applicant could renew his application before the Court of Appeal but a warning is now given to him that should he do so, and should the Court of Appeal find no merit for the renewal of the application, the Court of Appeal may order loss of time which the applicant has spent in custody pending his appeal. (Anthea Pang) Judge of the Court of First Instance of the High Court Ms Clara Ma, SPP of the Department of Justice, for the Respondent The Applicant appeared in person