HKSAR v. LEUNG PO SING

DCCC478/2012

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 478 OF 2012

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Reasons for Sentence

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1.  Defendant, you have pleaded guilty to two charges before this court. The 1st charge is a charge of burglary, contrary to section 11(1)(b) & (4) of the Theft Ordinance, and the 2nd charge is one of theft, contrary to section 9 of the Theft Ordinance.

2.  In respect of the burglary in Charge 1, you have admitted that you entered as a trespasser a switch room of the MTR Tuen Mun Station Public Transport Interchange at Tuen Mun between 17 January 2012 and 13 February 2012 and stole two portable earthing equipment, 54 metres of copper wires and 25 metres of copper earth bands.  The estimated cost of those stolen items was HK$353,000 and the repair cost was about $150,000. 

3.  The offence was discovered as a result of a staff member of the Electrical and Mechanical Services Department (EMSD) going up to the switch room on 13 February and finding the switch room door prised and the floor full of peeled electrical wire insulations.  The photographs exhibited depict the state of the switch room at the time that it was found. 

4.  The case was reported to the police on the following day, 14 February and that same staff member also found that the earth wires of 17 ventilation systems at the ceiling of the Tuen Mun Interchange were also missing.  Police officers therefore climbed up to the gangway of one of the ventilation systems to inspect it, and there they found you on the gangway.  Upon enquiry, you said you went there for sleeping.  The police also found a cutter and a roll of metallic wire in the vicinity.  You were, therefore, arrested, and under caution you remained silent. 

5.  On the same day, from the switch room, police seized some seven cigarette ends, two pieces of tissue paper and seven empty plastic water bottles.  Upon examination your DNA was found on five cigarette ends, a piece of tissue paper and the opening and inner surface of the caps of the six plastic bottles.

6.  In respect of the 2nd offence of theft, that offence was committed approximately two months after the burglary.  That related to theft of 17 metres of electrical cable from the MTR at Wu Kai Sha Station Public Transport Interchange at Ma On Shan on 24 April 2012.  The staff of the EMSD found there was a problem with the system so they went up to the ventilation system to check it.  The staff found two pieces of metal wires in a total length of 200 metres were cut away. 

7.  A report was made to the police on the same day.  When the police went up to the gangway of the ventilation system for inspection they found you hiding at the ventilation duct.  At that time you were observed to be holding a screwdriver in your right hand and wearing a labour glove your left hand as well as holding a black metal wire.  When the police officer climbed up to the ventilation duct where you were, he found a section of electrical cable in the length of 17 metres and a rucksack of tools up there.  

8.  The EMSD staff confirmed that the 17 metres of electrical cable that was found near to you and is the subject matter of the charge was similar to the 200 metres of wires that went missing.

9.  You were arrested and under caution you remained silent.  You said that you went to the ventilation system gangway at 4 pm the day before to pick up cardboard paper but lost your watch there, therefore at the material time you were there looking for your watch.  Your solicitor, Mr Wong, has mitigated fully and thoroughly on your behalf.  I have taken into account all that he has had to say.

10.  You are aged 29 and born in Hong Kong.  You have four children.  They are now under the care of the Social Welfare Department.  When you were out of Hong Kong for a short period of three months in 2010 employed in Peru, your wife deserted you and your children

11.  You have been to court on six separate occasions which involved ten charges.  One conviction is similar to that of burglary which you committed in 1998 when you were approximately 15 years of age.  You have other offences related to dishonesty.  They are going equipped for stealing, forgery of documents and taking a conveyance without authority.

12.  Mr Wong has said that you had worked as a lorry driver, earning approximately $8,000 per month, but it was however not regular employment.  In 2010 you were offered a job as a foreman in a mining company in Peru.  You earned a good salary of some $30,000 a month but because you were homesick your employment only lasted three months.  When you returned to Hong Kong you found that your wife had abandoned you and the children.

13.  You had repeatedly sought custody and care back from the Social Welfare Department but was refused because you did not have a stable job, living place or abode.  At the material time of the offences you were unemployed. 

14.  Mr Wong has correctly pointed out that the greatest mitigating factor in this case is your plea of guilty.  He has also correctly recognised that for the 1st charge of burglary this is a non-domestic premises.  There are clear guidelines for sentences on non-domestic burglary. 

15.  The material and the stolen property in both charges was that of copper cables or electrical wires.  The amount in Charge 1 was in fact quite a large amount of some $350,000-odd.  In respect of Charge 2, you pleaded guilty to 17 metres of electric cable, which was a much smaller amount.  The disruption you would have caused to the transport at the MTR stations would have been quite large.  There is however no evidence as to any disruption to transport or the like, but certainly, as can be seen from the summary of facts, the repair costs were some $150,000.

16.  In respect of Charge 2 there was a problem with the ventilation and lighting systems maintained by the EMSD. 

17.  It is apparent that you went to great lengths to commit this burglary and theft going equipped with the tools. 

18.  Defendant for the burglary charge, as the premises are non-domestic premises, the usual starting point, had you been convicted after trial, would be one of 2½ years or 30 months.  However, giving you full credit for your plea of guilty, I reduce that term by one-third to one of 20 months imprisonment. 

19.  In respect of Charge 2 had I convicted you after trial I would have taking a starting point of 12 months’ imprisonment.  Giving you full credit for your plea of guilty, that term will be reduced to 8 months’ imprisonment. 

20.  The 2nd charge was a separate and distinct offence and aggravated by the fact that it was committed whilst you were on court bail for Charge 1.  Bearing in mind the principle of totality, I order 4 months of Charge 2 to run consecutive to Charge 1, making a total term of imprisonment 24 months, to which you are so sentenced.