HKSAR v. OR MING FAI AND ANOTHER

DCCC1358/2011

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 1358 OF 2011

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Reasons for Sentence

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1. Defendants, you have pleaded guilty to one charge of burglary, contrary to section 11(1)(b) and (4) of the Theft Ordinance.

2. You have admitted that you both, along with Wan King-lun, burgled the premises known as Guangdong Barbecue Restaurant, Ground Floor, Tai Koon Mansion at Woo Sung Street, Yau Ma Tei, on 3 November 2011, and attempted to steal therein.

3. On 3 November at about 2 am, the manager of the restaurant locked the roller shutter of the restaurant before he left.

4. At about 2.22 am, an officer saw three of you ( D1 D2 and D3) wandering outside the restaurant.

5. The three of you then left and returned some five minutes later.

6. D2, you squatted down and pulled up the roller shutter of the restaurant.

7. D3, you were carrying a white bag and passed that bag to D1.  D1 then went into the restaurant with the bag, and D2, you immediately pulled down the roller shutter.

8. The police officer then ran over to the restaurant, and D3, you shouted, “There is police.  Run.”

9. D2 and D3, you fled immediately and, very soon after, the roller shutter of the restaurant was pulled up D1 ran out.

10. At that time, D1 was wearing a surgical mask and holding the white bag.  He was intercepted by police officers.

11. The bag was found to contain a hydraulic cutter, a screwdriver and a pair of gloves.  Prising marks were found on the roller shutter.

12. Under caution, the 1st defendant admitted that he burgled the restaurant as he was in need of money.

13. D2, you were also intercepted by a police officer, and under caution, you admitted that you burgled the restaurant as you were in need of money.

14. At the material time, D3, you managed to get away but were put on a wanted list.

15. Later that same month on 27 November, an off-duty police officer saw and recognised you, D3, to be the person wanted for this burglary case.  He then called for reinforcement and you were then arrested for this burglary.

16. At an ID parade, the officer identified you as one of the burglars of the burglary case.

17. Before me today there are only two of you, as the 1st defendant has already pleaded guilty on a previous occasion on 2 February 2012. He was sentenced to 20 months’ imprisonment.

18. In respect of you, the 2nd defendant, your counsel, Mr Peter Lee has mitigated fully and thoroughly on your behalf today.

19. You are 38 years of age and, according to my calculation, you have 20 previous convictions, of which eight are similar - that is, for burglary - and five others are related to dishonesty, which makes a total of 13 out of 20 for dishonesty offences.

20. At the commission of this offence, you were receiving Comprehensive Social Security Allowance.

21. Mr Lee says that in your early teens, you had stable employment but after that, as the factory was closed down, you became unemployed and then started mixing with undesirable characters and this thus led you into the series of burglaries and other criminal offences.

22. He says that you were looked after by your paternal grandmother, who is now over 90 years of age.  You are now determined to turn over a new leaf so you can come out and look after your grandmother in the distant future.

23. D3, your counsel Mr Ian Polson has mitigated also fully and thoroughly on your behalf.  He says the greatest mitigating factor in your case is your plea of guilty.

24. You are aged 45 and, according to my calculation again on your record, you have 67 previous convictions, of which 37 of those convictions are similar convictions for burglary.  You have a further five offences related to dishonesty, making a total of 42 offences out of 67 related to dishonesty.

25. You have today agreed to repay the owner of the shop $4,000 for the broken gate and that money has been paid today to the police in order to be given to the owner.  The prosecution has accepted that that is the amount required to repair the roller shutter.

26. Mr Polson has said although you are married, you have not actually been residing with your wife since 1993, but you do at present have a girlfriend and she is prepared to wait for you until you finish serving your sentence and marry you.  It is Mr Polson’s submission that she has faith that she will convert you away from your past criminal life.

27. In respect of both of you, both counsel have mitigated on the fact that they realise your records are not good records.

28. Mr Lee has urged me not to consider you D2, as a recidivist, and that you have already served your penalty, and not to consider your past record as an aggravating factor.

29. Mr Polson adopts the same submissions, but says that a person should not be sentenced twice for offences they have previously committed.

30. This burglary was a burglary of commercial premises the usual starting point is one of 2½ years’ imprisonment.  It is clear to me that D1 was sentenced on that basis, given his starting point and eventually his plea of guilty and sentence of 20 months’ imprisonment.

31. I am well aware that, defendants, there should be no disparity of sentence between defendants convicted of the same offence, but each case, each defendant must be looked at separately, particularly when it comes to any personal circumstances.

32. In this case, I can say at the very outset that there will be a disparity of sentence between the three defendants.

33. The main reason for that is because of an aggravating factor that both the 2nd and 3rd defendant have and the 1st defendant does not have, and that is of previous criminal offences of the same nature.

34. There is clear authority that an accused’s previous convictions may constitute a gravely aggravating factor.  This is particularly so when the earlier offence is identical or similar.

35. Although an accused should not be sentenced twice for the same offence, the fact of repetitive offending for the same type of offence might warrant aggravation of sentence.

“The starting point for a sentence may need be increased to take into account the aggravating features of persistence and the failure of previous sentences to deter, on the one hand, and the court’s duty to protect, on the other hand.”

36. That was a passage that was taken out of Cross & Cheung, Sentencing in Hong Kong, the 6th Edition, at page 7.

37. The Court of Appeal, in quite a recent case of 23 February 2010, CACC 268/2009, HKSAR v Cheung Kwok Yip, Peter also recognised those principles at paragraph 23.

38. In those circumstances, defendants, your record is by any means very lengthy and you have many previous similar convictions.

39. In the case that I have mentioned of Cheung Kwok Yip, the Court of Appeal said that the sentencing judge increased the sentence by over 50 per cent was not high.  That was in that offender’s previous sentence. I also take into account another very well-known case in regard to the Court of Appeal actually taking into account previous similar offences of HKSAR v Ngo Van Huy, CACC 107/2004.

40. That case was an offence for pickpocketing which was handed down in September 2004, where the Court of Appeal laid down there that a starting point of 12 to 15 months’ imprisonment was appropriate for persistent offenders, and for those with previous similar records, that should be increased by an amount of 9 months’ imprisonment, making it approximately a 60 per cent increase.

41. Defendants, it appears to me that it is a stark fact that sentences hitherto imposed upon you both have had no deterrent effect whatsoever upon you; you both keep committing like offences again and again.

42. In the present case before me, both of you had committed offences shortly after you were released from prison.

43. For D3, you committed this offence some seven months later, and for D2, you committed this offence some four months after you were discharged.

44. The fact of your persistence and the failure of previous sentences to deter you, it is the duty upon this court to protect the public.

45. In the circumstances, the 2½-year starting point in regard to both of you will increased as there is an aggravating factor of your previous convictions. 

46. For D2, I take a starting point of 33 months’ imprisonment and I give you full credit for your plea of guilty and reduce that term to 22 months’ imprisonment, to which you shall be so sentenced.

47. For D3, you are in a very different boat than D2.  You have 37 previous similar convictions.

48. I shall take a starting point of 40 months’ imprisonment.  I give you full credit for your plea of guilty and reduce that term to 27 months’ imprisonment.

49. You have also paid compensation to the owner, which I should also take into account in reducing your term of imprisonment, and for that, I reduce the term by a further 2 months’ imprisonment, which would make a total term of imprisonment that you are to serve of 25 months.