HKSAR v. LAU HIU MAN

   DCCC 262/ 2009

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 262 OF 2009

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The charge and facts

1. The defendant pleads guilty to a charge of burglary of a residential flat situated at Room 120, Block 11, Lower Ngau Tau Kok Estate, Sau Mau Ping, Kowloon (“the Flat”).  At around 2230 h on 2 September 2008, the occupant and his family went to bed in the Flat but did not close the wooden door or lock the iron grille.  At around 0630 h on the following day, they found a variety of their personal items (as stated in the Particulars of Offence) missing.  He reported the case to the police. On the corridor near the Flat, he recovered most of the missing items. 

2. Subsequent investigation by the police found 2 of the Defendant’s fingerprints match 2 fingerprints lifted from 2 envelopes recovered from the corridor. 

3. On 13 January 2009, the police arrested the Defendant in Tong Fuk Prison for the offence of burglary.  Under caution, the Defendant said that he entered the Flat during the small hours on 3 September 2008 through the unlocked iron grille and wooden door.  He stole the items inside the Flat.  He then sold some of the items and spent the proceeds. 

The Defendant’s personal circumstances

4.  I am told in mitigation that the defendant is now 34 years of age.  He received education up to F. 1.  He did a variety of unskilled jobs.  His father passed away last year.  His mother is 75 years of age and in bad health.  He wants to be released as soon as possible to look after her.   

5. He has 23 previous convictions for burglary.  The most recent one was in December 2008 (DC/1031/2008) for a burglary committed on 8 October 2008, 1 month after the present case.  He is still serving that sentence of 20 months’ imprisonment.

The principles of sentence

Sentencing guidelines for burglary

6. In R v CHAN Yui Man, Cr App 36/1988, the Court of Appeal held that in burglary of domestic premises, 3 years was about the proper starting point for a first offender of full age. This was followed in R v Chan Wing Ching Cr App 100/1991, R v Luk Wai Kit Cr App 99/1992, and R v Wong Man Cr App 372/1992.

Repeat offender

7. In HKSAR v Chan Pui-chi [1999] 2 HKLRD 830, the appellant was a seriously repeat drug trafficker.  Stuart-Moore VP said at 833 – 834:

We should add that there is nothing original about the notion that a defendant, with previous convictions of the same or a similar kind as the offence for which he is due to be sentenced, may receive a longer sentence than a defendant with none. If it were otherwise, the man of good character standing next to the recidivist in the dock on a joint charge, with equal culpability for the crime, would plainly have to be sentenced to the same terms of imprisonment subject probably to a small reduction in the case of the former to take account of his good character.

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There are many examples of this kind to be made, and trafficking in dangerous drugs is certainly no exception, if indeed there are any exceptions, to the general rule that re-offending in the same or a similar way may aggravate the offence, at least so far as sentence is concerned. This will have the result that the starting point which would have been adopted for a man of good character will sometimes need to 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 the public on the other. The court, in other words, is passing a deterrent sentence on the persistent offender, from whom the public needs protection, which is often unnecessary on a first or even sometimes a second-time offender. Much may depend on the gravity of the crime. The graver the crime, the more obvious becomes the need for a deterrent sentence on repetition in order that the public are properly protected.

The sentence I pass

8. Based on the line of authorities from Chan Yui-man (supra) onwards, I shall take a starting point of about 3 years’ imprisonment.  However, there is the aggravating factor of recidivism.  I revise the starting point to 3 years and 6 months.  I give a one-third discount for the plea of guilty.  There are no other mitigating factors.  I sentence him to imprisonment for 2 years and 4 months.   

9. On totality, I order that 1 year and 2 months of this sentence be concurrent with, and the remaining part consecutive to, the sentence in DC/1031/08.