爆竊偽證判刑過重？？維持原判

### 案件基本資料 - 案件名稱：香港特別行政區 訴 劉國和 - 法院：高等法院上訴法庭 (Court of Appeal, CA) - 法官：鄧國楨副庭長、楊振權法官 - 判決日期：2009年4月29日 ### 案情摘要 申請人劉國和與何啟富於2007年11月12日在慈雲山一住宅外，手戴白手套並使用剪鉗試圖剪開鐵閘鎖頭，何啟富負責把風。兩名便衣警員巡邏至現場時，何啟富向申請人吹口哨示警，兩人隨即逃跑但被截停制服。警方在現場檢獲巨型鐵剪鉗、手套、鏡子、鐵筆、鋁條及螺絲批等工具。警誡下申請人保持緘默，何啟富則聲稱探訪女友。警方另在申請人褲袋搜出偽造身份證。兩人被控企圖爆竊罪，申請人另被控管有偽造身份證罪。申請人承認管有偽造身份證罪，但否認企圖爆竊罪。經審訊後，兩人均被裁定企圖爆竊罪成。 ### 核心法律爭議 申請人就企圖爆竊罪的判刑提出上訴許可申請。其主要爭議點為：原審法官在判處企圖爆竊罪39個月監禁時，未有充分考慮企圖爆竊罪對屋內人造成驚嚇的機會較少，以及案發時住所內無人、大門鐵閘未遭損毀等減刑因素。此外，申請人認為其管有偽造身份證的判刑應少於12個月，因其為香港出生並持有香港身份證，與一般非法入境者或持雙程證人士利用偽造身份證求職或延長居留的情況不同。總體而言，申請人認為總判刑3年9個月明顯過重。 ### 判決理由 上訴法庭認為，雖然申請人未能成功進入住所，且住所門鎖未損毀，但這不代表罪行較輕，因其未成功是因警員及時介入。法庭同意企圖爆竊住宅對屋內人造成驚嚇的機會較低，但強調本案存在加重罪責因素，包括申請人糾黨犯案、攜帶多種專業爆竊工具，顯示有預謀且極可能是職業爆竊匪。法庭亦考慮到申請人有10次案底，其中兩次與爆竊性質相同。對於管有偽造身份證罪，法庭認為申請人作為香港永久居民持有偽造身份證必有不軌目的，其罪行不比非法入境者或過期居留者輕。最終，法庭認為原審法官就企圖爆竊罪採納的39個月量刑基準並非明顯過重，且總判刑3年9個月是適當的。 ### 引用案例與條文 本案引用了 R v Chan Yui-man CACC 36/1988 案，指出爆竊住宅罪行三年監禁的量刑基準只適用於成年初犯者。此外，申請人律師援引香港特別行政區政府 訴 李偉誠 (CACC 177/2006) 案支持其立場。 ### 裁決與命令 高等法院上訴法庭駁回申請人就判刑提出的上訴許可申請，維持原審法官判處的總監禁刑期3年9個月。 ### 判決啟示 本案重申，即使企圖爆竊未能成功進入住所或造成損毀，若有預謀、糾黨及使用專業工具，仍屬嚴重罪行。法庭在量刑時會全面考慮被告的犯罪記錄及案件的加重情節。對於管有偽造身份證罪，即使被告為香港永久居民，若有不軌目的，其罪行嚴重性不亞於非法入境者或過期居留者。 --- ### 免責聲明 本摘要由人工智能自動生成，內容可能存在錯誤或遺漏，僅供參考，不構成法律意見。如需法律建議，請諮詢合資格律師。### Case Details - Case Name: HKSAR v Lau Kwok Wo - Court: Court of Appeal (CA) - Judge: Hon Tang VP, Hon Yeung JA - Date of Judgment: 29 April 2009 ### Factual Background The applicant, Lau Kwok Wo, and Ho Kai Fu, were found outside a residential unit in Tsz Wan Shan on 12 November 2007. Lau was wearing white gloves and attempting to cut the lock of the iron gate with pliers, while Ho was acting as a lookout, also wearing white gloves. Two plainclothes police officers arrived, Ho alerted Lau, and both attempted to flee but were apprehended. Police found large pliers, gloves, a mirror, an iron bar, an aluminum strip, and a screwdriver at the scene. Lau remained silent under caution, while Ho claimed he was visiting his girlfriend. A forged identity card bearing the name Leung Hok Chan was found in Lau's pocket. Both were charged with attempted burglary, and Lau was additionally charged with possession of a forged identity card. Lau pleaded guilty to possession of a forged identity card but denied attempted burglary. After trial, both were convicted of attempted burglary. ### Key Legal Issues The applicant sought leave to appeal against sentence for attempted burglary. The main arguments were that the trial judge, in sentencing him to 39 months for attempted burglary, failed to adequately consider that attempted burglary causes less alarm to occupants and that the premises were unoccupied and undamaged. Furthermore, the applicant argued that his sentence for possession of a forged identity card should be less than 12 months, as he was born in Hong Kong and held a Hong Kong ID card, distinguishing his case from those involving illegal immigrants or two-way permit holders using forged IDs for employment or extended stay. Overall, the applicant contended that the total sentence of 3 years and 9 months was manifestly excessive. ### Ratio Decidendi The Court of Appeal held that although the applicant did not successfully enter the premises and the locks were not damaged, this did not make the crime less serious, as their failure was due to timely police intervention. The court acknowledged that attempted residential burglary might cause less alarm to occupants but emphasized aggravating factors: the applicant acted in concert, carried various professional burglary tools, indicating premeditation and likely professional involvement. The court also noted the applicant's 10 previous convictions, two of which were for similar burglary offenses. Regarding the forged identity card, the court found that as a permanent resident, the applicant's possession of a forged ID must have been for an illicit purpose, and thus his offense was no less serious than that of illegal immigrants or overstayers. The court concluded that the 39-month starting point for attempted burglary was not manifestly excessive, and the overall sentence of 3 years and 9 months was appropriate. ### Key Precedents & Statutes The court cited R v Chan Yui-man CACC 36/1988, which established that a three-year starting point for residential burglary applies to adult first offenders. The applicant's counsel also referred to HKSAR v Li Wai Shing (CACC 177/2006) to support his arguments. ### Decision & Orders The Court of Appeal dismissed the applicant's application for leave to appeal against sentence, upholding the total sentence of 3 years and 9 months imprisonment imposed by the trial judge. ### Key Takeaways This case reaffirms that even if an attempted burglary does not result in successful entry or damage, it remains a serious offense if there is premeditation, joint enterprise, and the use of professional tools. Sentencing courts will consider the defendant's criminal record and aggravating circumstances. For possession of a forged identity card, even for a permanent resident, if there is an illicit purpose, the severity of the offense is comparable to that of illegal immigrants or overstayers. --- ### Disclaimer This summary is AI-generated and may contain errors or omissions. It is for reference only and does not constitute legal advice. Please consult a qualified lawyer for professional legal advice.