It was charged that the Applicant, on 4 February 2013, together with Chan Tsz-leung (Chan), having entered as trespassers the Green River Restaurant, Shop G2-2D&2E, Ground Floor, Fortuna House, 4 Tung Chi Street, Kwai Chung, New Territories, attempted to steal therein, contrary to section 11(1)(b) and (4) of the Theft Ordinance.  On 21 October 2013, the Applicant pleaded guilty in the District Court before District Judge Sham and was sentenced to two years’ imprisonment.
申請人被控於2013年2月4日，連同陳子良（陳），作為侵入者在進入新界葵涌童子街4號福蔭大廈地下G2-2D及2E鋪翠河餐廳後，企圖在該處偷竊，違反《盜竊罪條例》第11(1)(b)及 (4) 條。2013年10月21日，申請人在區域法官沈小民席前認罪，被判監兩年。

On 16 May 2013, Chan pleaded guilty before District Judge Sham and was sentenced also to two years’ imprisonment.
2013年5月16日，陳在沈法官席前認罪，同樣被判監兩年。

The Applicant now applies for leave to appeal against sentence.  On 20 May 2014, having heard the application, we refused it and our reasons are given below.
申請人現針對刑罰提出上訴許可申請。2014年5月20日，經聆訊後，本庭拒絕申請，理由如下。

The Facts
案情

In the small hours of the material day, the restaurant in question was already closed.  The person-in-charge of the restaurant came to know from the anti-theft devices that someone had sneaked into the restaurant in an attempt to burgle, and therefore he made a report to the police.  In response to the report, police officers attended the scene and found Chan pulling down the roller shutter, and they apprehended him instantly.  The police officers later found at the back door of the restaurant a handcart, on which there were a safe belonging to the restaurant and a badminton bag.  The safe contained HK$99,000.00 in cash and the badminton bag contained some burglary tools, namely a crowbar and two screwdrivers.  At that time, the police officers found no sign of the Applicant.
案發當日凌晨時份，涉案餐廳已關門，餐廳負責人透過防盜裝置得知有人潛入餐廳企圖爆竊，於是報警。警方人員接報到場，發現陳正在把捲閘拉下，迅即把他逮住。警員後來在餐廳後門發現一輛手推車，上面載有屬於餐廳的夾萬和一個羽毛球袋，夾萬裡有現金HK$99,000.00，而羽毛球袋裡則有一些爆竊工具，即一枝鐵筆和兩把螺絲批。當時警員並無發現申請人的踪影。

The police officers immediately arrested Chan and administered a caution to him.  Under caution, Chan said that he committed the offence with an accomplice who had long escaped.  After investigation, the police found that the Applicant had driven Chan to the vicinity of the scene in a light goods vehicle before the offence was committed, and gained entry into a car park by using an Octopus card.  The registered owner of the light goods vehicle was the younger brother of the Applicant.  On 25 June 2013, the police arrested the Applicant.  The Applicant admitted the offence under caution, and alleged that it was Chan who had approached him and asked him to act together and that he was responsible for driving the vehicle and acting as a lookout.  Chan promised to pay him $500 as reward after the job was accomplished.  Apart from acting as a lookout, the Applicant also assisted Chan in moving the safe of the restaurant onto the handcart.  Later, on catching a glimpse of the strobe light of the police vehicle, the Applicant escaped from the scene immediately.  The light goods vehicle in question was actually owned by the Applicant.  The police later also seized from the vehicle the Octopus card used for gaining entry into the car park.
警員隨即拘捕陳並施行警誡，警誡下陳說與一名同黨犯案，而同黨早已逃脫。調查後警方發現申請人在案發前有駕駛一輛輕型貨車載陳到現場附近，並曾用八達通卡進入一個停車場。該輕型貨車的登記車主是申請人的弟弟。2013年6月25日，警方拘捕申請人，申請人警誡下承認控罪，並指是陳找他一同行事，負責駕駛車輛和把風。陳承諾在事成後會給他500元作報酬。除了把風外，申請人也協助陳把餐廳的夾萬搬上手推車，後來瞥見警車的警示燈，便立即逃離現場。涉案的輕型貨車實為申請人所擁有，警方事後亦在車上檢取了該張用來進停車場的八達通卡。

The restaurant did not suffer any loss in the incident.
事件中餐廳並無損失。

Mitigation
求情

At the time of sentencing, the Applicant was 39 years old, married, and had a son and a daughter.  He had a record of fourteen convictions, nine of which were for theft.  For these nine counts of theft, the Applicant was sentenced in Tsuen Wan Magistracy (TWCC 2209/2013) to four months’ imprisonment on 10 September 2013.  The Applicant committed the offence because of financial straits.  He only played a relatively secondary role in this case. He also pleaded guilty frankly, and the restaurant in question did not suffer any loss.
申請人判刑時39歲，已婚，育有一子一女。他有十四次定罪記錄，其中九項為盜竊罪，就這九項盜竊罪，申請人在2013年9月10日被荃灣裁判法院（TWCC 2209/2013）判監四個月。申請人犯案原因是經濟拮据。在本案中他只擔任較為次要的角色，他亦坦白認罪；涉案餐廳也沒有損失。

Reasons for Sentence of the Trial Judge
原審法官判刑理由

The trial judge first adopted a starting point of two and a half years’ imprisonment for burglary of non-domestic premises.  He found that the Applicant’s involvement in a joint enterprise with Chan to commit the offence was an aggravating factor.  Furthermore, the trial judge saw the photographs taken at the scene and found that both the roller shutter and the switch box had signs of having been pried by using a crowbar or a screwdriver, and this also aggravated the offence.  For these two aggravating factors, the trial judge adjusted the starting point upwards by a total of six months to three years.  The Applicant could receive a one-third discount for his guilty plea, and the final sentence was two years after discount.
原審法官首先採納適用於非住宅入屋犯法案件的兩年半監禁作判刑基準。他認為申請人伙同陳一起犯案，屬加刑因素之一。此外，原審法官看過現場拍的照片片，發現餐廳的捲閘和開啟箱均有被鐵筆或鏍絲批撬過的痕跡，也屬罪加一等。就此兩項加刑因素，原審法官將量刑基準調高共六個月至三年。由於申請人認罪，可獲三分之一折扣，經扣減後，最終刑期為兩年。

The trial judge therefore sentenced the Applicant to two years’ imprisonment, which was to run consecutively with the four months’ sentence in the other case, the magistrates’ court case TWCC 2209/2013.
原審法官於是判申請人兩年監禁，刑期與另一宗裁判法院案件TWCC 2209/2013的四個月判刑分期執行。

Grounds of Appeal
上訴理由

The restaurant in question was not domestic premises.  Based on relevant precedents, the starting point is two and a half years’ imprisonment, to which, Mr Lo, counsel for the Applicant, has no objection.
涉案的餐廳並非住宅，根據有關案例，量刑的起點為兩年半監禁。對此，代表申請人的羅大律師並無異議。

The grounds of appeal of the Applicant can be reduced to three major points.
申請人的上訴理由可歸納為三個重點。

The first major point of appeal is that the trial judge erred in treating “the use of tools to damage a place for enabling the thief to gain entry into the premises” as an aggravating factor, because this factor was already taken account of in the original starting point of two and a half years’ imprisonment.  Furthermore, the tools used in this case were just tools commonly used in committing this crime, and there was nothing particularly serious about them.  Given that the Applicant had made a clean breast of everything, he had sincerely co-operated with the police, he was not the mastermind, and his criminal record was not as bad as Chan’s, the judge should not have enhanced the sentence by six months even though he jointly committed the offence with Chan.
第一個上訴重點是，原審法官錯誤地將“利用工具損毀地方而令賊人進入單位”為加刑因素，因為原來的兩年半量刑基準已包含了這方面的原素。再者，在本案使用的工具只是一般犯案工具，沒什麼特別嚴重的地方。縱使申請人與陳一同犯案，但考慮到他將事件始末和盤托出，坦誠與警方合作，而且他不是主謀，案底亦沒陳那麼重，法官不應再加刑六個月。

Mr Lo cited paragraphs 8-9 in Secretary for Justice v Tsang Hon-yin Anthony, CAAR 5/2004 (16 December 2004) and paragraph 9 in HKSAR v Fan Kit-hung, CACC 62/2009 (14 July 2009) in support of the arguments of the Applicant.
羅大律師引援Secretary for Justice v Tsang Hon-yin Anthony，CAAR 5/2004（2004年12月16日）第8-9段，及HKSAR v Fan Kit-hung，CACC 62/2009，（2009年7月14日）等9段以支持申請人的論點。

In Secretary for Justice v Tsang Hon-yin Anthony, the Court of Appeal first confirmed in paragraph 8 that the starting point for sentence in a case of burglary of non-domestic premises in the absence of aggravating or mitigating factors was two and a half years’ imprisonment; and then cited in paragraph 9 another case HKSAR v Sim Ka-wing, CACC 450/2000 (30 May 2001) to further explain that the cases to which this starting point was applicable usually involved a measure of planning, and thus a degree of premeditation and planning was already built into the starting point.
在SJ v Tsang Hon-yin Anthony一案，上訴法庭先在第8段確認涉及非住宅的入屋犯法罪，在沒有加刑或減刑的因素下，量刑起點為兩年半監禁；然後在第9段引用另一案件HKSAR v Sim Ka-wing, CACC 450/2000，（2001年5月30日），進一步說明，該量刑起點所適用的案件通常都會涉及計劃，所以某程度的預先策劃和計劃已經包含在該量刑起點內。

15.	In HKSAR v Fan Kit-hung, the Court of Appeal referred to the aggravating factors set out in another case HKSAR v Cheng Wai-kai, CACC 338/2007 (11 June 2008): (1) the offence is carefully planned and skilfully executed involving the use of heavy instruments 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 convictions of a similar nature, and (6) the offender commits multiple offences.
在HKSAR v Fan Kit-hung一案，上訴法庭提到另一案件HKSAR v Cheng Wai Kai，CACC 338/2007，（2008年6月11日），所列出的加刑因素：（1）罪行是經過精心策劃，並技巧地以重型工具或器材來執行；（2）犯案者兩人或以上；（3）罪行針對富有的地點或貴重的財物；（4）犯案者是專業竊賊，而非機會主義者；（5）犯案者有前科，特別是性質相似的罪行；（6）犯案者干犯多項罪行。

16.	What the Court of Appeal referred to in these cases are all established legal principles, but they are of no assistance to the Applicant.  As the trial judge rightly pointed out, the use of tools to commit the offence is an aggravating factor.  Furthermore, although the Applicant was not the mastermind, he acted in collusion with Chan in committing the offence which involved planning beforehand and that is also an aggravating factor (see point (2) in the preceding paragraph).  This court endorses the trial judge’s enhancing the sentence by six months.
上訴法庭在這些案件所提及的都是確立的法律原則，但對申請人並無幫助。如原審法官正確地指出，利用工具犯案是加刑的因素。另外，雖然申請人並非主謀，但他與陳有預謀地伙同犯案，這亦是加刑的因素：見上一段第 (2) 點。本庭認同原審法官加刑六個月的做法。

17.	The second major point of appeal is that it is unfair for the trial judge not to enhance the sentence of Chan for using tools to commit the offence and for jointly committing the offence with another person, while enhancing the sentence of the Applicant for these reasons.
第二個上訴重點是，原審法官並無以陳因使用工具犯案及共同犯罪等而加刑，但卻以這些理由而對申請人加刑，這是有欠公允。

As stated above, Chan was sentenced on 16 May 2013.  The trial judge adopted the same starting point, namely two and a half years’ imprisonment and, taking into consideration the fact that Chan was a habitual offender, he enhanced the sentence by six months.  However, the trial judge found that doubt existed as to whether or not Chan committed the offence jointly with another person, and therefore he did not use it as a reason to enhance the sentence.  Finally, since Chan pleaded guilty, the trial judge gave him a one-third discount and sentenced him to two years’ imprisonment.
如上文所述，陳是在2013年5月16日被判刑。原審法官同樣以兩年半為量刑基準，考慮到陳是積犯，於是加刑六個月。但是，原審法官對陳是否伙同別人一同犯案，認為有疑點，所以沒有以此為加刑理由。最後，因陳認罪，原審法官給予三分之一的扣減，判他監禁兩年。

When Chan was sentenced by the trial judge, the Applicant had not yet been arrested.  The trial judge was not aware of the existence of the Applicant, and therefore he did not use the fact that Chan committed the offence jointly with another person as a reason for sentence enhancement.  The trial judge also did not take the burglary tools as an aggravating factor because, as it can be seen from his Reasons for Sentence, there was no evidence to prove that Chan had ever used those tools for burglary.  The trial judge cannot be criticised for not taking these as aggravating factors.
當陳被原審法官判刑時，申請人還沒有被拘捕，原審法官也不知道申請人的存在並，所以沒有以伙同犯案為加刑理由。原審法官也沒有以爆竊工具為加刑因素，因為從他的判刑理由書看來，並無證據證明陳曾使用那些工具來爆竊。原審法官沒有以這些為加刑因素，是無可厚非的。

Mr Lo submitted that the Applicant had made a clean breast of everything but was affixed with a degree of culpability more serious than Chan’s, and that it was very unfair to him.  Yet, as stated above, the trial judge sentenced Chan to two years’ imprisonment on the basis of the evidence available and the circumstances present at the time.  Even if the sentence imposed on Chan is lenient, it does not mean that the Applicant can have a reduction of sentence automatically: See HKSAR v Wong Kam [2013] 1 HKLRD 39 and HKSAR v Bunloun Jantakarn & Ors, CACC 397 & 466/2007 (19 August 2008).  More importantly, when handling the Applicant’s appeal, this court will not compare his sentence with Chan’s to decide whether his sentence is appropriate or not.  This court finds that the imposition of a sentence of two years’ imprisonment on Chan by the trial judge cannot constitute any unfairness to the Applicant.
羅大律師說，申請人和盤托出，卻招來比陳更重的罪責，對他十分不公道。可是，正如上文所述，原審法官只是基於當時的證據和情況來判陳監禁兩年，即使對陳是輕判，也不等於申請人可自動獲得減刑：見HKSAR v Wong Kam [2013] 1 HKLRD 39 及 HKSAR v Bunloun Jantakarn & Ors，CACC 397 & 466/2007，（2008年8月19日）。更重要的是，處理申請人的上訴時，本庭不會比較他和陳的刑期，來決定他的刑期是否恰當。本庭認為，原審法官判陳監禁兩年，不可能構成任何對申請人有不公的地方。

The third major point of appeal is that it is truly improper for the trial judge not to give the Applicant a further discount for his frank confession that brought about his  prosecution this time.  The Respondent acknowledged that if the Applicant had not frankly confessed, the prosecution might not have sufficient evidence to have him convicted.
第三個上訴重點是，原審法官並無就申請人坦白供認而導致是次檢控給予額外扣減，實屬不妥。答辯人同意假如申請人不坦白招認，控方未必有足夠證據把申請人定罪。

Yet, as the Court of Appeal pointed out in HKSAR v Ma Ming [2013] 1 HKLRD 806:
可是，正如上訴法庭在香港特別行政區訴馬明[2013] 1 HKLRD 806指出：

32.	本庭不反對在個別案件及在處理整體判刑時，法庭可以行使酌情權，因為被告人的坦白招認是唯一支持控罪的證據，而將整體判刑作出輕微調整。但該因素不支持法庭必需給予該類被告人超過三分一的額外刑期扣減的立場。在法庭沒有給予該類被告人超過三分一的額外刑期扣減時，該因素亦非可爭拗的上訴理由。	“32.	When dealing with individual cases and when considering the totality of the sentence, the court, in exercising its discretion, can take into account the fact that the frank confession of the defendant provides the only evidence which supports the charge or charges and therefore make minor adjustments to the total sentence.  To this we do not object.  However, this factor does not support the argument that this kind of defendants must be given a further discount over and above the one-third discount.  If the court does not give such defendants any discount in addition to the one-third discount, that does not constitute an arguable ground of appeal.
“

原審法官因申請人承認控罪而給予他三分一的刑期扣減已包括了申請人和警方合作、自動招認及在法庭上承認控罪等因素。申請人不能以未能獲得超過三分一的額外刑期扣減而有合理投訴，更不能以此為上訴理由，要求減刑。馬大律師提出的這一點上訴理由不成立。”	33.	In giving the one-third discount to the applicant upon his pleading guilty, the trial judge had already taken into account the applicant’s cooperation with the police, his voluntary confession and his guilty plea entered in court.  That he was denied a further discount in addition to the one-third discount cannot constitute a reasonable complaint, nor can it be a ground of appeal against sentence.  This ground put forward by Mr Ma is not substantiated.”
33.

This court finds that the factors raised by Mr Lo were already subsumed within the discount received by the Applicant as a result of his guilty plea, therefore there is nothing improper for the trial judge not to give a further discount.
本庭認為，申請人認罪所獲得的扣減已包含羅大律師所提及的因素，因此原審法官沒有再額外減刑，並無不當。

Finally, this court has to point out that a sentence of two years is not manifestly excessive, and there is no proper basis on which the Court of Appeal can interfere.
最後，本庭需要指出，兩年的刑期並非明顯過重，上訴法庭沒有任何合理基礎可以于預。

Conclusion
結論

None of the grounds of appeal of the Applicant is substantiated.  This court refuses his application for leave to appeal against sentence.
申請人的上訴理由無一成立，本庭拒絕其針對判刑的上訴許可申請。

Mr Raymond H C Cheng, Senior Public Prosecutor of the Department of Justice, for the Respondent.
答辯人：由律政司高級檢控官鄭凱聰代表。

由法律援助署委派陳志成律師事務所轉聘大律師羅沛然代表。	Mr Lo Pui-yin, instructed by Messrs Chan & Co, C.S., assigned by Director of Legal Aid, for the Applicant.
申請人：