HKSAR v. LO LAP PAN

 DCCC180/2010

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 180 OF 2010

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

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

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

Reasons for Sentence

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

1.  I accepted that you are under economic pressure to commit the present offence. If the information submitted on your behalf is accurate it would be difficult for me to understand why did you not seek welfare assistance from the government. I find it difficult to understand, but I believe it is a common phenomenon in Hong Kong. I have experience about many tenants who cannot afford to pay rent but refuse to go to seek government help. The choice is yours. If you want to save face, not going to the government for help, you prefer to take the risk of trying your luck by committing a stealthy offence. Unfortunately to you. You were caught practically in the act of committing the burglary. I can show you some leniency because of the fact of your financial difficulty, that you had two families to support.

2.  The depot apparently is not occupied and is not guarded in the evening or at night, but it is not a deserted place as such. The owner still employs a security guard in the daytime.

3.  Your mother did not fully appreciate the seriousness of the offence. She said you were just picking up scrap metal for sale. You sold those articles as scrap. Before you do that you took the trouble of dismantling those wire, copper articles. You make them scraps. To draw a not good a parallel, if a person took a manhole cover and sold it to the scrap metal merchant you cannot tell me or tell any court that you are only picking up scrap metal. But of course I would take into account that it was unguarded in the evening. And I also give you the benefit of the doubt that you knew about it.

4.  Unlike an ordinary burglar, when they enter the premises they do not care whether they would surprise anyone, whether they would threaten anyone inside the building, the occupants in the building. The Court of Appeal, when they laid down the guideline, clearly had in mind that the occupant would be in fear when they were confronted by the burglar, and that makes the offence of burglary serious. I take into account that it was an unoccupied premises and you knew about it. And I can be as lenient as possible, but my hands are tied.

5.  Those mitigating factors I have mentioned and the particular circumstances of the case are not exceptional enough for me to depart from the guideline. However, those circumstances entitle you to the lowest end of the bracket. A starting point of 2½ years for each offence would be appropriate.

6.  You are entitled to one-third of remission. For this one-third of remission again my hands are tied. I cannot give you a lower remission, a remission less than one-third. It used to be the case that when evidence is strong, as in your case, in respect of the 2nd charge you were caught in the act, the evidence is overwhelming. As a matter of common sense a guilty plea will not carry much weight, but that is not the law as in the guidelines laid down by the Court of Appeal. Even in that situation you are entitled to one-third remission.

7.  The rationale behind this one-third remission, to put it simply, is you save court’s time. It has nothing to do with your genuine remorse. It has nothing to do with the fact that you saved police investigating time. The one-third remission, if I may be clear myself, is for saving court’s time.

8.  There are two other mitigating factors I have not considered but I am considering them now, the fact that you had shown genuine remorse by cooperating with the police, in particular relating to the 1st charge. Suppose you have a co-defendant and he refused to cooperate with the police, he wasted a lot of police investigation time, but like you he pleaded guilty when he come to court. He is entitled to one-third remission also. I am sure you will not feel being treated fairly. More importantly, the public would not be able to understand why the two defendants were given the same remission.

9.  So I believe the principle is that you have been very cooperative with the police, you cooperate with the police from the first opportunity available to you, you are entitled to a further remission to reflect your conduct. But this further remission cannot be too much in view of the fact that you had already been given one-third remission. A further remission of three months would be appropriate for each charge. I don’t want to make a hair splitting to distinguish the two charges. Technically the degree of cooperation in saving the police time is different between the two charges.

10.  The last point your counsel submit is about the totality of the sentence for these two charges. They are two separate distinct offences. You walk away from the police in the 1st charge. You walk away from your criminal way of living that night and you will not find yourself in trouble. But you chose to return, and it is a separate offence although it looks like a sequel to the 1st offence. I accepted your counsel’s submission to look at the time span between the two offences and that the same premises were involved.

11.  I will order only part of the sentence of the 2nd charge to run consecutively to the sentence on the 1st charge. On Charge 1 - it is a simple arithmetic - I would sentence you to 17 months’ imprisonment, on the 2nd charge 17 months’ imprisonment. Four months of the 2nd charge to run consecutively to the 17 months for the 1st charge. So total sentence is 21 months.