爆竊罪量刑時慣犯認定及刑期調整？減刑

### 案件基本資料 - 案件名稱：香港特別行政區 訴 李文景 - 法院：高等法院上訴法庭 (Court of Appeal, CA) - 法官：彭偉昌法官、彭寶琴法官 - 判決日期：2021年12月7日 ### 案情摘要 申請人李文景面對三項「入屋犯法罪」(burglary)，在區域法院承認首兩項控罪。原審法官判處申請人監禁共26個月。申請人不服判刑，提出上訴許可申請。本案的爆竊事件發生於2020年8月17日，申請人兩次爆竊同一店舖，第一次獨自犯案，偷取手機及現金；第二次則夥同第一被告，偷取錢罌。警方其後拘捕申請人及第一被告，申請人在警誡下承認爆竊及將部分贓物交予第一被告。 ### 核心法律爭議 本案主要爭議點在於原審法官在判刑時，將申請人形容為「慣犯」(habitual offender)並因此調高量刑基準是否恰當，以及就控罪二採納的量刑基準是否明顯過重。申請人認為其已向事主作出賠償，且過往沒有爆竊罪紀錄，故判刑不公及過重。答辯方則認為賠償微不足道，且申請人有多項不誠實罪行紀錄，判刑並非明顯過重。 ### 判決理由 上訴法庭認為，原審法官將申請人形容為「慣犯」並因此調高控罪一的量刑基準值得商榷，因申請人距離上次因不誠實罪行被判刑已有七年，且之前從未干犯爆竊罪。法庭亦指出，申請人犯案時沒有帶備爆竊工具，案情亦未顯示其冥頑不靈。因此，原審法官將控罪一的量刑基準由30個月提高至33個月屬明顯過高，應下調至30個月。對於控罪二，雖然夥同他人再次犯案是加重罪責因素，但將量刑基準由30個月調高至39個月亦屬明顯過重，應下調至34個半月。考慮到認罪扣減三分一刑期，最終將總刑期由26個月下調至23個月。 ### 引用案例與條文 本案引用了 HKSAR v Chan Pui Chi [1999] 2 HKLRD 830，以支持被告人定罪紀錄是否需要加刑是原審法官的酌情考慮。 ### 裁決與命令 上訴法庭批准申請人的上訴許可申請，並視為正式上訴。上訴得直，將申請人的總刑期由原審的26個月下調至23個月。原審法官下令兩項控罪刑期同期執行的命令獲得維持。 ### 判決啟示 本案強調了在判斷被告人是否為「慣犯」時，應仔細審視其過往定罪紀錄的性質、時間間隔及與現控罪的關聯性。即使被告人有不誠實罪行紀錄，若長時間未再犯同類罪行，不應輕易被視為「慣犯」而大幅提高量刑基準。此外，加重刑罰的幅度應與案情嚴重性相稱，避免過度上調。 --- ### 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 Lee Man King - Court: Court of Appeal (CA) - Judge: Hon Pang Wai Cheong JA, Hon Pang Po Ching JA - Date of Judgment: 7 December 2021 ### Factual Background The applicant, Lee Man King, pleaded guilty to two counts of burglary in the District Court. The trial judge sentenced him to a total of 26 months' imprisonment. The applicant sought leave to appeal against the sentence. The burglaries occurred on 17 August 2020, where the applicant twice broke into the same shop. The first time, he acted alone, stealing a mobile phone and cash. The second time, he was accompanied by a co-defendant, stealing a money box. The police subsequently arrested the applicant and the co-defendant, and the applicant admitted to the burglaries and giving some stolen items to the co-defendant. ### Key Legal Issues The main legal issues were whether the trial judge's characterization of the applicant as a "habitual offender" and the consequent uplift in the sentencing starting point were appropriate, and whether the starting point adopted for the second charge was manifestly excessive. The applicant argued that he had made restitution to the victim and had no prior burglary convictions, making the sentence unfair and excessive. The respondent contended that the restitution was negligible and that the applicant had multiple dishonesty convictions, thus the sentence was not manifestly excessive. ### Ratio Decidendi The Court of Appeal found that the trial judge's description of the applicant as a "habitual offender" and the resulting uplift in the starting point for charge one were questionable. This was because seven years had passed since his last conviction for a dishonesty offence, and he had no prior burglary convictions. The court also noted that the applicant did not carry burglary tools and the facts did not suggest he was incorrigible. Therefore, the increase of the starting point for charge one from 30 months to 33 months was manifestly excessive and should be reduced to 30 months. For charge two, while re-offending with an accomplice was an aggravating factor, raising the starting point from 30 months to 39 months was also manifestly excessive and should be reduced to 34.5 months. After applying the one-third discount for guilty plea, the total sentence was reduced from 26 months to 23 months. ### Key Precedents & Statutes The case cited HKSAR v Chan Pui Chi [1999] 2 HKLRD 830, which supports the proposition that whether a defendant's criminal record warrants an uplift in sentence is a discretionary matter for the trial judge. ### Decision & Orders The Court of Appeal granted leave to appeal and treated it as a full appeal. The appeal was allowed, and the applicant's total sentence was reduced from 26 months to 23 months. The order for concurrent sentences for both charges was upheld. ### Key Takeaways This judgment emphasizes the need for careful consideration of the nature, time interval, and relevance of a defendant's past convictions when determining if they are a "habitual offender." Even with a record of dishonesty offences, a significant period without similar re-offending should preclude a substantial uplift in the sentencing starting point. Furthermore, any uplift in sentence must be proportionate to the severity of the offence and aggravating factors. --- ### 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.