HKSAR v. CHU CHUI SHAN AND ANOTHER

DCCC 736/2016

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL ACTION NO 736 OF 2016

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REASONS FOR SENTENCE

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1.  This is a case of burglaries of commercial premises in Hung Hom area.

2.  D1 pleaded guilty to three charges.  D2 pleaded guilty to four charges.

Facts

Charge 1 against D1 and D2

3.  On February 19, 2016, both defendants opened the roller shutter of a fruit shop, went inside and took away the cash takings of $5,000 and a notebook computer. 

Charge 2 against D1 and D2

4.  Two weeks later, D2 entered a restaurant and took away $4,000 cash from the cashier.  D1 was there too but mainly to look out for D2. 

Charge 3 against D2 only

5.  Three weeks later, together with two other persons, D2 tried to break open the same fruit shop in Charge 1, intending to steal from inside.  However, some pedestrians walked by, the gangs were alerted, actions were aborted. 

6.  Eventually, the shop suffered no loss, but it was not because D2 regained his conscience, but because he wanted to protect himself.  In the premises, this attempted burglary should be punished like a substantive one. 30 months’ imprisonment shall be applied.

Charge 4 against D1 and D2

7.  On the next day, D1 and D2, together with another person broke into a residential building unit.  They took away some cash and jewellery worth some $7,000 in total.

8.  This residential unit was in fact used by the owner as a storeroom.  The crime nature is akin to non-domestic burglary and the corresponding starting point of 30 months instead of domestic 36 months’ imprisonment will be adopted.

Mitigation and criminal record

9.  D1 is 26 years old, she is single and living with her mother at the reported address. She used to be a beautician.

10.  She has one previous conviction which was theft in year 2009 where she was sentenced to 2 months’ imprisonment.

11.  D2 is 40 years old, he is a divorcee.  Both of his sons are still in school in Hong Kong.  He used to work as a tailor earning about $10,000 a month.

12.  He has two previous convictions where one was burglary in 2013, for that he was sentenced to 22 months’ imprisonment. 

Consideration

13.  D1 pleaded guilty at the first opportunity and she offered to testify in D2’s trial.  Witness statements were taken from her.   As a result, Charges 1 and 2 were amended to include D2.  She was obviously instrumental in causing D2’s subsequent guilty plea to the case. 

14.  The case of Z, FACC 9/2006, was considered and 45 per cent discount will be offered to D1.  At paragraph 23 of the case:-

“The Court of Appeal is well placed to consider the range of reductions of sentence for co-operation with the authorities. It has used various percentages of discount for different degrees of assistance. It has applied a usual discount of 40 per cent (including the one-third reduction for a guilty plea) for an appellant who had provided assistance to the authorities without testifying against those about whom they had provided information. HKSAR v Y [2005] 3 HKC 337 at 340. (Compare its earlier decision in HKSAR v Ng Shek Yu, CACC 178/2000 unreported, 1 March 2001, referring to a discount of between 40 to 45 per cent as usually appropriate in such circumstances.) Where an appellant had not only given information but had proceeded to give truthful and material evidence, the Court of Appeal has given a usual discount of 50 per cent (including the one-third reduction for guilty plea). HKSAR v Lee Yat Fan (CACC 414/1999 unreported, 30 May 2001). Where the level of co-operation is such as to place the appellant in the ‘supergrass’ category, a maximum discount of two-thirds has been used. R v Chan Fu Kui [1986] HKLR 967 at 968, HKSAR v Ng Shek Yu (above).”

15.  D2 pleaded guilty to the whole case as soon as Charges 1 and 2 were amended to include him.  He also indicated to the prosecution his willingness to tell the truth, to testify against D3, but the prosecution rejected the proposal.  D3 was eventually acquitted after trial.  Everything considered, slightly more than one-third discount shall be afforded to D2.

16.  Both defendants pleaded guilty to multiple charges and the totality sentence principle has to be considered.

Totality principle

17.  In Chan Tsz Lung, CAAR 4/1998, a 24 years old defendant was sentenced on appeal to 5 years’ overall starting point imprisonment for 15 burglary offences.  The offences were committed within a 6 months’ period and the targets were schools and restaurants.  The defendant had numerous dishonesty related convictions.

18.  In Fan Kit Hung, CACC 62/2009, a professional burglar was sentenced on appeal to an overall starting of 6 years’ imprisonment for 13 non-domestic burglaries which were committed within a period of 4 months.  The defendant had no burglary criminal record. 

19.  In Cheng Wai Kai, CACC 338/2007, the overall starting point of 5 years’ imprisonment given to a defendant for five non-domestic burglary charges was upheld on appeal.  This defendant had no burglary criminal record.

20.  In Hui Yee Lung, CACC 406/2011, a professional burglar was sentenced on appeal to an overall starting point of 6 years’ imprisonment for seven burglaries he committed mainly to schools and universities.  He stole 22 notebook computers and some other electrical devices.  He had no less than 28 burglary convictions.

21.  Both defendants here are not professional burglars. 

D1

22.  For the three charges of D1, an overall starting point of 42 months’ imprisonment is adopted.  Being given the 45 per cent discount, D1 should be sentenced to 23 months’ imprisonment. 

23.  To give effect to this total 23 months’ imprisonment, D1 is sentenced on:-

(1) Charge 1, to 16 months’ imprisonment;

(2) Charge 2, to 16 months’ imprisonment where 4 months is to run consecutive to the sentence in Charge 1;

(3) Charge 4, to 16 months’ imprisonment where 3 months is to run consecutive to the sentences in the above Charges 1 and 2.

D2

24.  For the four charges D2 is facing, an overall starting point of 48 months’ imprisonment is adopted.  Being given a slightly more than one-third discount, he should be sentenced to 30 months’ imprisonment.

25.  To give effect to this total 30 months’ imprisonment, D2 is sentenced on:-

(1) Charge 1, to 19 months’ imprisonment;

(2) Charge 2, to 19 months’ imprisonment where 4 months is to run consecutive to the sentence in Charge 1;

(3) Charge 3, to 19 months’ imprisonment where 4 months is to run consecutive to the sentence in Charges 1 and 2;

(4) Charge 4, to 19 months’ imprisonment where 3 months is to run consecutive to the sentences in Charges 1, 2 and 3.