HKSAR v. LEUNG TING FUNG AND ANOTHER

DCCC 1076/2012

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 1076 OF 2012

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Reasons for Sentence

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1. The 1st defendant in this case faced two charges, one of burglary and a second charge of arson. The arson offence was one of intending to damage property or being reckless as to whether property would be damaged. The 2nd defendant pleaded guilty to one charge of burglary.

2. The facts admitted by the defendants disclose that at 3.30 am on 7 October 2012, a security guard, PW1, of the Choi Fook Royal Banquet Restaurant on the 9th Floor of Windsor House in Gloucester Road, Causeway Bay in Hong Kong was taking a rest inside the restaurant after checking that all the exits were locked.  He was informed by the mall’s security guard that the restaurant was on fire and there was a significant smell of burning.  They discovered that smoke was coming out from a locker inside the female toilet of one of the banquet halls.  When the locker was opened there were sparks seen on a restaurant uniform inside the locker and the fire was extinguished immediately.

3. During an inspection of other areas of the restaurant, it was discovered that one of the drawers at the cashier desk had been prised open.  The manager of the restaurant, PW2, returned to the restaurant and found that a screwdriver which belonged to the restaurant kept in another drawer at the cashier had been placed on the desktop of the cashier’s desk.  $210 kept in the drawer was missing and the fire in the female toilet resulted in damage to the locker cabinet and the property kept inside it and this property included a walkie-talkie, some uniforms and clothes, 16 stacks of A4 papers, stationary, decorative items and a set of pen-stab.  The total value of damaged property exceeded $14,000.

4. CCTV footage installed inside the mall was inspected and it was discovered that the 1st and 2nd defendants had entered the mall via a rear staircase at 12.46 after midnight on 7 October.  They were seen entering the restaurant 6 minutes later and 9 minutes later the CCTV was unplugged. 

5. At 12.30 just after midnight on 9 October, another security guard, PW3, at the mall saw from CCTV footage that D1 and D2 again appeared at the mall.  The police arrived and the defendants were discovered inside a karaoke lounge on the 8th floor of the mall.  The 1st defendant admitted to the police officers investigating the offences that at the material time he had entered the restaurant via a rear staircase and used their mobile phones to illuminate the surrounding area.  He admitted prizing open the drawer with the screwdriver which he had found therein and stealing $200.  He said that he then used a lighter to burn some miscellaneous articles in a storeroom and disposed of the lighter afterwards.  Under caution, he said that he had stolen the money out of greed and burnt the articles out of fun.

6. The 2nd defendant admitted that at the material time he followed the 1st defendant to the restaurant via the rear staircase. He said he acted as a lookout and used his mobile phone to illuminate the surrounding area whilst the 1st defendant stole money from the cashier’s desk. He said that they later went to a female toilet at the restaurant and he waited whilst the 1st defendant entered the storeroom with some papers.  He said he did not see the 1st defendant burning anything.  Apparently the money was shared by the two defendants later.

7. The 1st defendant is 20 years of age.  He has appeared before the court on one previous occasion in 2010 for an offence of theft for which he was placed on Probation.  According to the Probation officer, his performance whilst on probation was unsatisfactory.  He is currently serving a period of 6 months’ imprisonment for a number of unrelated traffic offences committed whilst on bail for the current offences.  He lived with his mother and has two sisters, one older, one younger.  His father left home when he was about 10 and he has had little to do with the family since. The defendant left school in Form 4 and he has held various jobs.  I am told that he attempted suicide in December 2012 whilst on remand for the current offences but now that problem is being effectively managed. 

8. A number of letters have been submitted to the court in support of the defendant including one from himself in which he expresses his remorse and his promise to reform in the future.  However, I regarded that promise with a certain amount of scepticism.  He has previously been placed on probation and performed that unsatisfactorily.  Worse still, he has committed further offences whilst on bail for these offences. 

9. The 2nd defendant is 21 years of age and he has a clear record.  He has pleaded guilty to one charge of burglary.  He is not suitable for detention in a Detention Centre because of his physical condition.  He is an only child and has very supportive parents although he was mainly taken care of by his mother.  He was diagnosed in Primary 3 as suffering from ADHD and received regular psychiatric follow-up at St. Mary’s.  He was prescribed medication.  However, he failed to follow up an appointment arranged on 13 July 2009.  His academic performance at school was poor.  However, what made the situation worse was that he mingled with triad-related peers and favoured visiting bars and karaoke lounges.  His parents were extremely concerned about his behaviour but he was heedless to their advice. 

10. The offences to which the defendants have pleaded guilty are serious and the Court of Appeal have said that the usual starting point for offences of burglary in these circumstances should be a sentence of 30 months’ imprisonment.  The defendants will be entitled to a one-third discount because they pleaded guilty to the offence. 

11. In regards to the 1st defendant, he has also pleaded guilty to a charge of arson and having considered all the circumstances of that particular offence, I take a starting point of 30 months’ imprisonment and reduce that to 20 months to reflect his guilty plea. 

12. I have considered the question of totality.  It would be wrong in principle in my view to order wholly concurrent sentences. Having looked at all the circumstances, background and age of the defendant, I have decided that 6 months of the sentence on the arson should run consecutive to the sentence for the burglary making a total of 26 months. 

13. I also have to consider the fact that the defendant is currently serving a period of 6 months’ imprisonment for unrelated traffic offences and they were committed whilst he was on bail for these offences and the normal principle is that the sentences for offences committed on bail should be served consecutively.  I have considered carefully all the circumstances and the matters that have been put before me in mitigation and decided to order that the sentence of 26 months’ imprisonment for the two offences for which he stands convicted today shall commence today.

14. The 2nd defendant will go to prison for 20 months.