Barnes J (giving the judgment of the Court):
原訟法庭法官張慧玲宣讀上訴法庭判案書：

The applicant was charged with three counts of burglary, the first two charges contrary to section 11(1)(b) and (4), Theft Ordinance, Cap. 210, Laws of Hong Kong and the third charge contrary to section 11(1)(a) and (4) of the said Ordinance.  The applicant pleaded guilty to the first two charges before Deputy District Judge Sham and was sentenced to 43 months’ imprisonment while the third charge was left on the file.  The applicant now seeks leave to appeal against sentence.
申請人被控三‍項「入屋犯法」罪，首兩項違反香港法例第 210 章《盜竊罪條例》第 11(1)(b)及(4) 條，第三項則違反上述條例第 11(1)(a)及(4) 條。申請人在區域法院暫委法官沈‍小‍民席前承認首兩項控罪，被判監禁43 個月。第三項控罪則留在法庭存檔。申請人現針對判刑申請上訴許可。

Admitted facts
承認案情

The facts of the case were that in January and March 2009, the applicant sneaked into the flats in question to steal.
案情顯示申請人在2009 年1 月及3 月期間，分別潛入涉案‍單位偷竊。

In respect of Charge 1, the applicant sneaked into the flat in question around 1 pm on 6th January 2009 to steal.  While doing so, he alerted the owner of the flat.  The applicant made good his escape.  Upon checking, the flat owner confirmed a loss of two hundred dollars in cash and a mobile phone which was worth HK$4,000.
就首項控罪，申請人在2009 年1 月6 日下午一時許潛入涉‍案單位偷竊，期間驚動戶主。申請人成功逃脫。經點算後，戶主確認失去現金200 元及一‍部價值港幣4,000 元的流動電話。

In respect of Charge 2, the applicant sneaked into the flat in question on the afternoon of 13th March 2009 to steal.  At the time, the owner of the flat was not at home.  The applicant stole $8,000 in cash and approximately HK$33,000’s worth of property.  The male owner of the flat returned home and found the applicant.  He then called the police for assistance.  When the applicant left the flat, the male owner of the flat who was waiting outside the flat tried to intercept the applicant, but was scared off by the applicant who was holding a crowbar.  The applicant made good his escape.
就第二項控罪，申請人於2009 年3 月13 日下午潛入涉案單位偷竊，戶主當時未歸。申請人盜取現金8,000 元及總值港幣約33,000 元的財物。男戶主回家，發現申請人，遂報警求助。申請人離開單位時，守候單位外的男戶主試圖將申請人截停，但被手執鐵筆的申請人嚇退，申請人成功逃脫。

The applicant was subsequently arrested by the police in August when he was stopped for inquiries. Under caution, he admitted having committed the above offences.
申請人其後在8 月被警員截查拘捕，在警誡下他承認干犯上述控罪。

Background of the applicant
申請人背景

The 39-year-old applicant has three criminal convictions, one of which is for the same offence as the ones in the present case.  For that offence, the applicant was sentenced to 2½ years’ imprisonment.  In mitigation, counsel for the applicant submitted that the applicant was heavily in debt due to unemployment and thus committed the offences in desperation.
申請人現年39 歲，有三項刑事紀錄，其中一項與本案罪行‍相同。就該罪行申請人被判監2½ 年。申請人代表律師求情時指申請人因失業而債台高築，鋌而走險犯案。

Reasons for sentence
判刑理由

In sentencing, Deputy Judge Sham had considered the applicant’s background and the reasons for committing the offences.  This is a case involving domestic premises and the normal starting point for this is 3 years’ imprisonment.  The starting point for Charge 1 was one of 3 years.  The circumstances of the offence in Charge 2 were aggravated by the fact the applicant pointed a crowbar at the male flat owner to scare him off.  The starting point was one of 3½ years.  The starting points were reduced to 2 years and 28 months respectively on account of the applicant’s guilty pleas.  When considering the totality principle, Deputy Judge Sham referred to HKSAR v Ng Ngai Shan CACC197/2008 and he took the view that 19 months of the sentence imposed on Charge 2 should run consecutively to that on Charge 1, making a total term of 43 months.
沈‍法官判刑時考慮了申請人的背景及犯罪原因，案件涉及住宅，量刑起點一般而言是3 年監禁。首項控罪起點是3 年。因申請人在第二項控罪中使用鐵筆指嚇男戶主，令案情更為嚴重，起點是3½ 年。因申請人認罪，分別下調至2 年及28 個月。沈‍法官在考慮整體刑期原則時，參考HKSAR v Ng Ngai Shan (吳艾山) CACC197/2008一案，認為應將第二項控罪中的19 個月與第一項控罪的刑期分期執行，總刑期是43 個月。

Grounds of appeal
上訴理由

Ms. Karen Cheung, counsel for the applicant, put forward two grounds of appeal:
申請人代表張‍偉‍顏大律師提出兩項上訴理由:

(1)Deputy Judge Sham did not sufficiently reflect in the sentences imposed the confession voluntarily made by the applicant to the police notwithstanding a lack of evidence from the prosecution to link the two offences to him.
(一)沈‍法官未有在判刑時充分反映申請人是在控方沒有證據將他與該兩項控罪連繫的情況下自願向警方作出招認的。

(2)Deputy Judge Sham inappropriately mentioned the present case in the same breath with Ng Ngai Shan (for Ng Ngai Shan committed another offence whilst on bail), and thereby ordered 19 months of the sentence imposed on Charge 2 to run consecutively to that on Charge 1.  The overall sentence and the proportion were both inconsistent with principle.
(二)沈‍法官不當地將本案與吳艾山相提並論(因為吳艾山在保釋期間再干犯控罪)，判令第二項控罪的19 個月與首項控罪分期執行，整體刑期及比例性均不合原則。

Respondent’s response
答辯人回應

Mr. Ira Lui, Senior Public Prosecutor for the Respondent, made a very fair submission in which he conceded that, in the light of the fact that the applicant had twice made good his escape and the owners of the flats concerned could not recognize the applicant, the prosecution would not have been able to prove the applicant’s guilt but for his confession.  Mr. Lui also submitted that Deputy Judge Sham did not exercise his discretion to reduce the sentence, but he did not give any reasons for it in his Reasons for Sentence.  Mr. Lui was of the view that this court could, upon referring to the authorities, exercise its discretion to slightly reduce the sentence imposed on the applicant.
答辯人代表高級檢控官雷‍芷‍茗的陳詞非常中肯。他認同申請人兩次均成功逃脫，相關戶主未能認出申請人，若申請人不是作出招認，控方不能將他繩之於法。雷‍律師指沈‍法官沒有行使酌情權將刑期扣減，但他並無在判刑理由書裡面講明原委。雷‍律師認為本庭可參照案例，酌情稍減申請人的刑期。

In respect of the overall sentence, having cited relevant authorities, Mr. Lui submitted that Deputy Judge Sham’s ordering 19 months of the sentence imposed on Charge 2 to run consecutively to that on Charge 1 might be debatable.
就整體刑期，雷‍律師在引述有關案例後，認為沈‍法官頒令第二項控罪其中19 個月與首項控罪分期執行，或有可議之處。

Discussion
討論

For burglaries committed at domestic premises, the starting point is one of 3 years (see HKSAR v Ng Wai Hing [2003] 2 HKLRD 338).  The circumstances of the case were aggravated by the fact that these were premeditated crimes involving the use of a crowbar by the applicant. It is appropriate to enhance the starting point (see HKSAR v Chu Chun Man CACC415/2009).  The applicant is not a man of previously good character.  He has one previous conviction for the same offence, but he is not a persistent offender.
就入屋犯法罪，若涉及住宅，量刑起點是3 年(見HKSAR v ‍Ng Wai Hing [2003] 2 HKLRD 338。申請人使用鐵筆有計劃犯案，令案情更嚴重，上調量刑起點是正確的(見香港特別行政區訴朱俊文CACC415/2009)。申請人並非初犯者，他有一次相同罪行紀錄，但不算是慣匪。

On Charge 1, Deputy Judge Sham properly took a starting point of 3 years and reduced it by one-third to give the applicant the discount he was entitled to for his guilty plea.  The sentence was 2 years’ imprisonment.  On Charge 2, it is not improper for Deputy Judge Sham to increase the starting point to 3 years and 6 months.  After a discount for the guilty plea, the sentence was 2 years and 4 months’ imprisonment.
就首項控罪，沈‍法官採納3 年此量刑起點是恰當的。申請人認罪，可得三分之一認罪扣減。刑期是2 年。就第二項控罪，沈‍法官將量刑起點向上調至3 年6 個月亦無不當。經認罪扣減後，刑期是2 年4 個月。

We have considered relevant authorities, including Chu Chun Man (supra) and cases listed therein: HKSAR v Lee Kwok Chuen CACC445/2000; HKSAR v Hui Chi Tong CACC414/2007; HKSAR v Chan King Yuen CACC29/2010 and HKSAR v Hui Yee Lung CACC284/2009.  The total sentence of 43 months Deputy Judge Sham arrived at by making 19 months of the sentence imposed on Charge 2 consecutive to the 24 months imposed on Charge 1 is, in our view, manifestly excessive.
本庭在考慮了有關案例：包括上述朱俊文及在朱俊文一‍案中列舉的案例：HKSAR v Lee Kwok Chuen CACC445/2000；HKSAR v Hui Chi Tong CACC414/2007；香港特別行政區訴陳景炫 CACC29/2010及香港特別行政區訴許儀龍 CACC284/2009。本庭認為沈‍法官頒令第二項控罪其中19 個月與首項控罪的24 個月分期執行，而達致總刑期43 個月，確是明顯過重。

That the applicant still voluntarily pleaded guilty notwithstanding a lack of sufficient evidence from the Prosecution showed that he was genuinely remorseful.  In these circumstances, the court should give a further discount to the applicant as an encouragement.  This is also in the public interest (see Secretary for Justice v Tsui Kim Ming Simon CAAR4/1997; HKSAR v Ng Wing Chung CACC176/2005 and HKSAR v Hui Chi Tong CACC414/2007).  Deputy Judge Sham did not give any further discount to acknowledge the fact that the applicant still voluntarily pleaded guilty in the above circumstances.  This made the sentence manifestly severe.
申請人在控方證據不足下仍然自願認罪，可見他是真誠懊悔。在此情況下，法庭應給予申請人額外扣減，以作鼓勵。此舉亦符合公衆利益(見Secretary for Justice v Tsui Kim Ming Simon CAAR4/1997；HKSAR v Ng Wing Chung CACC176/2005及HKSAR v Hui Chi Tong CACC414/2007)。沈‍法官並無因應申請人在上述情況下仍然自願認罪再予以扣減，令刑期更是過分嚴苛。

In our view, had the applicant not pleaded guilty, as stated above, in the absence of sufficient evidence, the appropriate total sentence should have been 38 months.  We consider that the applicant should be given a further discount of 4 months for pleading guilty notwithstanding insufficient evidence.  Accordingly, the appropriate total sentence is 34 months.
本庭認為申請人若非在上述證據不足情況下仍然認罪，恰當的總刑期應為38 個月。在考慮了申請人在證據不足的情況下仍然自願認罪，本庭認為應給予申請人額外4 個月的扣減，恰當的總刑期為34 個月。

In view of the reasons above, we grant the application for leave to appeal, and treating the application as the appeal itself, we allow the appeal and substitute the sentences with the following:
基於上述理由，本庭批准上訴申請許可，並視之為正式上訴，上訴得直，刑期改判如下：

Charge (1):20 months’ imprisonment;
控罪(一)：監禁20 個月；

Charge (2):14 months’ imprisonment; to run consecutively,
控罪(二)：監禁14 個月；分期執行，

making a total of 34 months.
合共34 個月。

Mr. Ira Lui, Senior Public Prosecutor of the Department of Justice, for the Respondent
答辯人：由律政司高級檢控官雷芷茗代表香港特別行政區。

Ms. Karen Cheung, instructed by Messrs. Tang, Wong & Chow, assigned by the Director of Legal Aid, for the Applicant
申請人：由法律援助署委託鄧王周廖成利律師行轉聘張偉顏大律師代表。