HKSAR v. LI CHUNG CHUEN

 DCCC166/2009

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 166 OF 2009

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

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

 -----------------------------------

Reasons for Sentence

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

1.  The defendant has been convicted of two counts of burglary.  I gave my full reasons for the convictions in my verdict, I do not intend to repeat them now.

2.  I drew the inference that the defendant was a burglar of both premises.  I relied on the DNA evidence.  I found it to be the defendant’s DNA on a cigarette end inside the 12th floor premises and on the lip of a can found inside the 5th floor premises.  Both items were seized by the police, who were called to both burglary premises on the next day.

3.  The evidence was that both items should not have been where they were seized when the premises were locked up prior to the burglary that evening.  I did not believe in the possibility of a coincidence here.  I am sure the defendant was present at the time of the burglaries of both premises.  To consider there were other possible reasons or an explanation was beyond belief.  Such a possibility was not propped up by any evidence to suggest it is likely.  I am sure the defendant was present and therefore inferred he was a burglar.

4.  In the absence of any plausible explanation as to presence, I found it natural to draw the irresistible inference he was there to burgle.

5.  I have heard mitigation put forward today.  Mr Polson has done his best to mitigate on behalf of the defendant. 

6.  These two offences took place in December 1999 and I will take into account the sentencing principles and guidelines of that period, which are in fact unchanged to date.

7.  The conventional approach is to consider a 2½ year starting point for a non-domestic burglary with no aggravating or mitigating factors appropriate.

8.  There are two offences here committed on the same night. 

9.  It is the 12th floor burglary, Charge 2, that is the offence that concerns me particularly.  The night watchman was found bound, gagged and tied to a chair in the 12th floor warehouse.  He must have been there for a period of time.  He was an elderly man that, very luckily, suffered no ill-effect from this evening.  Nevertheless, this fact makes the offence aggravating.

10.  The defendant and his accomplices were professional in their task.  In fact, this was not the defendant’s first burglary, he had obviously only recently been released from a 1997 conviction for burglary not long before commission of this offence.  In addition, the value of the goods were high.  There was nearly a $1.5 million loss to the owners of the 12th floor premises.

11.  These are all matters that take this away from a conventional starting point of 2½ years where Charge 2 is concerned.

12.  I have looked at the Reasons for Sentence of Mr Lai Koon-man, an accomplice.  He was sentenced in District Court case 767/2004.  He was convicted of these same two offences the defendant faces today.  His Honour Judge Line, as he then was, in October 2004 sentenced Mr Lai.  I have considered his sentence and the principles of sentence.  Mr Lai in fact faced three charges in that case whereas the defendant here only faces two.

13.  After careful deliberation, for Charge 1, the 5th floor burglary, I will take a starting point of 2 years and 6 months.  I see no reason to consider a discount from this starting point.  For Charge 1, the defendant is sentenced to 2 years and 6 months.

14.  For Charge 2, to reflect the aggravating factors plainly present in this burglary, I take a starting point of 3 years and 6 months.

15.  In deciding to make Charge 1 and 2 partly concurrent and partly consecutive, I have considered the overall criminality of the facts, enhanced by the factor of there being two burglaries here.  At the same time, I have considered the totality principle. 

16.  I find an overall sentence of 4 years appropriate and not excessive. 

17.  I will order 6 months of Charge 1 to be served consecutively to Charge 2 and the balance concurrent.  That will be a total sentence of 4 years' imprisonment.