HKSAR v. LUI WING TUNG

DCCC 264/2017

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 264 OF 2017

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REASONS FOR SENTENCE

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1.  The defendant pleaded guilty to one count of burglary (charge 1) and two counts of theft (charges 2 and 3), contrary to section 11(1)(b) and (4), and section 9 of the Theft Ordinance respectively, Cap 210, Laws of Hong Kong.

Summary of facts

2.  In the evening of 31 December 2016, the defendant entered a domestic premises at Flat G, 2/F, Shun Fung building, Nos 5-9 Fung Yau Street North, Yuen Long, New Territories (“the Premises”) as a trespasser.  He used a screwdriver to prize open the window to gain entry (Charge 1). 

3.  Upon entry, he ransacked the Premises and stole the following items:-

(i) 9 watches (including 3 Rolex watches, 4 Emporio Armani watches and 2 Tissot watches);

(ii) 7 rings (including 4 diamond rings, 2 pearl rings and 1 red gemstone ring);

(iii) one necklace with pendant;

(iv) one laptop computer;

(v) one SIM card;

(vi) one SD card;

(vii) one piggy bank containing cash about HK$500;

(viii) 5 books;

(ix) one wallet;

(x) two pairs of earrings; and

(xi) one plastic bag containing some receipts and warranty card.

4.  The total value of the stolen items is HK$193,080. 

5.  CCTV footage captured at the material times the defendant loitered in the vicinity of the building where the Premises was located for about half an hour and then climbed up the building from the platform.

6.  On 5 January 2017 at 8:24 pm, the defendant entered a supermarket at L101, Level L2, Tin Shui Shopping Centre, Tin Shui Estate, Tin Shui Wai, New Territories (“the Supermarket”) and stole 18 boxes of chocolate by putting them in his recycle bags.  He left the Supermarket without making payment (Charge 2).

7.  Later at 9:09 pm on the same day, the defendant returned to the Supermarket and stole 16 boxes of chocolate by putting them all in his recycle bags.  Again, the defendant left the Supermarket without making payment (Charge 3).

8.  Upon seeing what happened, a member of the staff of the Supermarket followed the defendant and tried to intercept the defendant.  The defendant ran away and abandoned one of his recycle bags outside the Supermarket.  The bag contained 6 boxes of chocolate and were covered by the Supermarket.  No report was made to the police.

9.  On the next day, staff of the Supermarket viewed the CCTV and discovered that the defendant stole a total of 34 boxes of chocolate on two occasions on the day before.  The case was reported to the police.

10.  The value of the 28 unrecovered boxes of chocolate is HK$3,928.8.

11.  On 9 January 2017, police officers located the defendant in Tin Shui Wai area and arrested him on the same day.

12.  In the video recorded interviews conducted with the defendant, he made the following confessions:-

(i) On the evening of 31 December 2016, he climbed into the Premises via the pipes from the platform and prized open the window by a screwdriver;

(ii) He ransacked the Premises and took some valuable items such as watches and rings;

(iii) He sold all stolen properties to an unknown man in a park for HK$7,000;

(iv) He lost all the money in a mahjong parlour;

(v) He admitted stealing 34 boxes of chocolate from the Supermarket;

(vi) He removed the anti-theft tags from the chocolate and put the chocolate into his recycle bags and left without making payment;

(vii) He sold all the chocolate to an unknown woman in a park for HK$800.

Criminal record

13.  The defendant has a total of 32 previous convictions.  They include Burglary or Attempted Burglary, Theft, Going equipped for stealing, Possession of dangerous drug, etc.  In particular, he has 7 Burglary and Attempted burglary convictions and the latest one was convicted in 2011.  Concerning Theft, he has 15 Theft convictions and the latest one is a shoplifting case convicted in September 2016. 

Mitigation

14.  The defendant is 50 years of age.  He is divorced.  He received secondary 3 education in Hong Kong.  He now lives with his mother, his daughter and his son.  He is unemployed now but he used to work as salesman and decoration worker.  Defence said he was a drug addict before but he has not taken any dangerous drug recently.

15.  In mitigation, Defence submitted that the defendant is very remorseful now.  He was co-operative with the police and pleaded guilty to all the offences at the earliest available opportunity.  He asked the court to give the defendant the full one-third discount.  Defence submitted that though a tool was used in committing Charge 1, no heavy equipment was used.  It was committed all by the defendant and it does not seem to be a pre-mediated offence.  All in all, Defence asked the court to impose a lenient sentence to the defendant.

Sentencing consideration

16.  The Court of Appeal had set down clear guidelines in sentencing cases of burglary.  For burglary of domestic premises, for a first offender where there are no aggravating circumstances, the starting point should be 3 years’ imprisonment: HKSAR v Lau Pang [2004] 3 HKLRD 565. 

17.  In HKSAR v Cheng Wai Kai [2008] HKCU 932, Yeung JA set out the following aggravating features:

“The starting point can be adjusted upwards if there are aggravating circumstances such as (1) the offence is carefully planned and skillfully executed involving the use of heavy instruments or equipment; (2) the offence is committed by two or more people; (3) the offence targets at substantial premises and involves substantial properties; (4) the offender is a professional burglar and not just an opportunist; (5) the offender has previous convictions, particularly previous convictions of a similar nature, and (6) the offender commits multiple offences”

18.  In the present case, the aggravating features include the defendant’s poor criminal record and the fact that the total value of the stolen properties is quite substantial.  This is the defendant’s 8^th conviction of burglary and he can certainly be described as a repeated offender.  The value of the stolen properties is substantial and the victim suffered a loss just slightly less than HK$200,000.

19.  Considered all the circumstances, the defendant’s personal background, his criminal record and the mitigation put forward, I adopt 3.5 years i.e. 42 months as the starting point for Charge 1.  After giving one third discount for the guilty plea, the sentence for Charge 1 is 28 months’ imprisonment.  For both Charges 2 and 3, I adopt 6 months as the starting point.  After giving one third discount for the guilty plea, the sentence for each charge is 4 months’ imprisonment.  Further considered the totality principle, I order 1 month’s imprisonment of charges 2 and 3 to be served consecutively to the sentence of other charges.  Therefore, the total sentence is 30 months’ imprisonment.