HKSAR v. LUI YI CHEUNG

DCCC28/2001

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 28 OF 2001

--------------------

--------------------

------------------------------

Reasons for Sentence

-------------------------------

1.  The defendant pleaded guilty to two charges, one of attempted burglary and one of failing to surrender to custody.  The particulars of the 1st charge are that on 26 October in 2000 in Hong Kong with two other people, he attempted to enter a flat at Hung Tsui House, Castle Road with intent to steal.  Having been arrested and charged with that offence, he was admitted to bail and, on 3 May, he failed to surrender to custody without reasonable excuse.

2.  The facts in connection with the burglary charge are that at 6.30 pm on 26 October 2000, an officer was on patrol in Caine Road, Castle Road and Seymour Road areas when she saw a defendant acting furtively.  This was a man called Ngai who was D3 in the original proceedings.  Ngai was later seen to board a private car on which the defendant, a female, subsequently known as Ng, who is D2 in the original proceedings, and an unknown male were seated.

3.  Police officers watched the vehicle and, at about 7.15, the defendant and Ngai alighted from the car and approached the building on Castle Road.  The defendant was seen pressing the doorbells to different flats of the building and, shortly afterwards, they were able to gain access to the premises when presumably a resident or visitor to the premises left the entrance of the building.

4.  At 7.52 pm, the female, Ng, also was seen entering the building carrying a large handbag, again, when somebody left the entrance of the building.  The defendant and the two persons within left the building at 8.08 pm, whereupon they were arrested by the police.  Upon search of the bag carried by the female, the police found two crowbars, two pairs of gloves, a pair of pliers and a folding ruler.

5.  The defendant admitted that he had attempted to burgle a flat on the 4th floor of the building.  He admitted that Ngai, who is D3 in the proceedings, had asked him to commit a burglary and they went to Flat 3A on the 4th floor.  The defendant later phoned D2 and asked her to go to the flat.  When D2 arrived, she passed D3 the crowbar.  The defendant and D3 then tried to break into the flat with the crowbar.  However, they noticed that the lift of the building was approaching the 4th floor; they stopped and left.

6.  After the defendant’s arrest, he was later admitted to bail.  He was granted bail on 13 February 2001 to appear in the District Court for trial on 3 May.  He failed to appear on that day, and a warrant was issued for his arrest.  I am told that during the interim period, the defendant went to China and returned and surrendered to police custody on 16 October 2009.

7.  The defendant has two minor convictions, relatively minor convictions, recorded against him in 1979 and 1992 for fighting in a public place and theft, respectively.  I am told by counsel for the defendant that the defendant was born in Hong Kong in March 56.  He is now 53 years of age, and he was educated to Form 1 standard.  He was originally married in Hong Kong but divorced in 2003.  By that marriage, there are three adult children.  I am told that he has remained in regular contact with those children.

Two brothers of the defendant and his ex-wife are in court today.  I am told that he has parents in Hong Kong.

8.  The defendant is suffering from Parkinson’s at the present time and that started about three years ago.  He has serious shaking in his right hand and has to use a walking stick and sometimes a wheelchair to get around.  I am told that his father also suffers from Parkinson’s Disease.  Since the defendant returned to Hong Kong, he has been in Lai Chi Kok and received medical attention there.  The medical diagnosis is that his left brain is withering and that is the cause for the shaking in his right hand.  I am told that the situation is such that he requires assistance for dressing himself.

9.  With regards to the failure to answer bail, counsel explained that, on 30 November 2000, his son was born on the mainland, and that was about a month after the commission of the offence.  I am told that the defendant was told that his cohabitee had deserted his son and he found it necessary to go to China to look after his son.  I am told that he came back on 16 October 2009 to face the music.

10.  I am told that with regard to the defendant’s plea today I should give him particular credit because in respect of his two co-accused, one was acquitted and the second was convicted of an alternative charge of going equipped.  And I am told that the defendant has been brave enough to admit the full offence of burglary without prevarication and I should give him full credit for his guilty plea.  I am told that his 9 year-old son is now being looked after by a friend in China.

11.  One other issue that has been raised in this matter is that when he was admitted to bail, he provided cash in the sum of $40,000.  I am told that that was borrowed, $20,000 from his ex-wife and $5,000 from each of his three siblings.  I am told the defendant has no other resources.

12.  As counsel for the defendant rightly acknowledges, the usual sentence for a case of this kind is one of 3 years’ imprisonment.  In this case, the defendant absconded and has been at large for some eight years.  He is suffering from a serious medical condition.

13.  I take as a starting point a sentence of three years and reduce that to 20 months to reflect the guilty plea.  I take into account the fact that he has pleaded guilty when his other accused were dealt with in a different manner, and also I take into account his medical condition, and I am going to reduce that to 16 months.

14.  As regards the breach of bail, that clearly has to be a consecutive sentence.  I take into account the circumstances of why he left and the fact that he voluntarily returned.  I also take into account that when he did voluntarily return, he entered a plea of guilty to the offence.  Taking all those features of that case into account, I take a starting point of 3 months, reduce it by a third to 2 months and order that run consecutive to the sentence of 16 months, and I have considered the question of totality.  So, the total sentence of imprisonment will be one of 18 months.

15.  As regards the bail money $40,000, I see no reason why that should not be estreated.