HKSAR v LI HO YIN AND ANOTHER

DCCC 323/2010

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 323 OF 2010

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REASONS FOR SENTENCE

1.  D1 pleads guilty to three charges of burglary of domestic premises, contrary to section 11(1)(b) and (4) of the Theft Ordinance, Chapter 210 (charges 1, 4 & 5). D2 pleads guilty to one charge of burglary of domestic premises (charge 1) and one charge of handling stolen goods, contrary to section 24(1) and (2) of the Theft Ordinance (charge 6).

2.  Full particulars of the offences are set out in the summary of facts admitted by the defendants.  The following is a brief summary of the facts of each charge.

Charge 1

3.  In the early hours of the 18th December last year the defendants burgled the home of Mr & Mrs Kwok, at a time when they were staying out overnight.  The iron gate and wooden door were prized open, the home ransacked and a substantial amount of property stolen, as particularised in the charge.  The value of the stolen property is estimated at $275,600, of which only a small part has been recovered.  The stolen property included three credit cards, which were used the same day as set out in the table submitted by Miss Wan. 

Charge 4

4.  During the night of the 17th and 18th January this year D1 burgled the home of Miss Cheung.  The door was prized open and the home ransacked.   Cash and handbags valued at $8,700 were stolen, none of which has been recovered. 

Charge 5

5.  In the early hours of the 20th January this year D1 burgled the home of Mr & Mrs Kim, at a time when they were sleeping at home.  When they woke up in the morning Mr Kim discovered the back door was damaged and property stolen, as particularised in the charge.  The value of the stolen property is estimated at $30,000, most of which was found on D1 when he was arrested three days later.

Charge 6

6.  On the 8th January this year a room on the 8th floor of the Cosmopolitan Centre, which room was not used as domestic premises but as a storeroom, was burgled and 2.1 kg of abalone, valued at $8,500, was stolen.  Under caution D2 admitted that after D1 committed the burglary D1 called him to say he had stolen the abalone.  D2 agreed to sell the abalone for D1, which he did for $5,000. 

Burglary

7.  The correct starting point for a single burglary of domestic premises committed by a first offender of full age where there are no aggravating or mitigating features is three years imprisonment.  Where the defendant has committed more than one offence of a similar nature at different times a higher sentence than if there had been only one offence is appropriate (see Attorney General v LUI Kam-chi [1993] 1 HKC 215 as applied in Attorney General v LO Ching-fai [1996] 2 HKCLR 20).

Charge 1

8.  I am satisfied the targeting of relatively high value goods including brand name bags, watches and jewellery together with cash and credit cards is an aggravating feature of the burglary.  I increase the starting point to 3 years and 6 months imprisonment.  I accept Mr Laskey’s submission the defendant’s appear to have taken steps to ensure Mr & Mrs Kwok were not at home at the time of the burglary and therefore the commission of the burglary at night is not an aggravating factor.

9.  In respect of D2, he is properly to be regarded as a persistent offender, having appeared in court on nine occasions, amassing a total of twenty-nine convictions, most relating to dishonesty, including nine for burglary and two for handling stolen goods.  Notwithstanding the last burglary was in 1997, when the defendant was 20, I am satisfied the proper starting point after trial for the burglary is to be further increased by 3 months imprisonment to 3 years and 9 months imprisonment       (see HKSAR v CHAN Pui-chi [1999] 2 HKLRD 830).

Charge 4

10.  Whilst clearly the cubicle was used as a home by Miss Cheung discussion has taken place between the court and the parties as to whether the building is itself a residential building.  Insufficient evidence has been placed before me to determine this.  I therefore give the benefit to the defendant that when burgling these premises he was not intending to burgle domestic premises and therefore take as my starting point 2 years and 6 months imprisonment.  I would add that a quick search on the internet for the Cosmopolitan Centre reveals there are many companies with their offices on different floors of the Centre.

11.  Further without the defendant’s confession the prosecution could not have charged the defendant with this burglary.  I am satisfied the starting point should be further reduced to one of 1 year and 6 months imprisonment.

Charge 5

12.  The burglary was committed when Mr & Mrs Kim were asleep and when anyone would clearly have expected the premises to be occupied.  This is an aggravating feature increasing the starting point to 3 years and 6 months imprisonment (see HKSAR v TONG Fuk-sing [1999]                3 HKLRD 710 as applied in HKSAR v SONG Jianhua CACC 362/2006).

Handling stolen goods

13.  There are no guidelines for sentence in cases of handling stolen goods.  Assistance can however be obtained as to the factors to take into account from the case of R v Webbe [2002] 1 Cr App R (S) 82 as applied in HKSAR v XIAO Wei [2004] 1 HKC 520 and HKSAR v YAU Pak-chun CACC 211/2006 (English digest in the Criminal Appeals Bulletin, January 2006). Taking into account the nature and value of the goods and the closeness of the handling to the burglary I am satisfied the proper starting point after trial is 1 year and 6 months imprisonment. 

14.  I do not propose to increase the starting point by reason of the defendant being a persistent offender.  I am satisfied this aggravating feature in sentence is properly reflected by the increase in the starting point for the more serious charge of burglary.

15.  In passing sentence I have carefully considered everything said on behalf of the defendants by Mr Lee and Mr Laskey, including the letters submitted on behalf of D1 by Mr Lee. 

Totality of sentence

16.  The three burglaries committed by D1 are separate and distinct for which consecutive sentences are appropriate.  I am satisfied an overall starting point of 4 years and 6 months imprisonment is appropriate for these three burglaries.  In respect of D2 again the burglary and handling charges are separate and distinct.  I am satisfied an overall starting point of 4 years imprisonment is appropriate for these two offences.

Assistance to authorities.

17.  D1 provided a witness statement implicating D2 in other offences.  This has resulted in D2 pleading guilty to the charge of handling stolen goods.  Mr Lee on behalf of D1 asks that the defendant be given a discount of 45% to reflect his assistance to the authorities.  Having considered, amongst others, the decision of the Court of Final Appeal in Z v HKSAR [2007] 1 HKLRD 977 I am satisfied a discount of 45% is appropriate.  This will mean D1 will serve a total of 2 years and 5 months imprisonment.

18.  The defendants are sentenced as follows:

D1

Charge 1 – 1 year and 11 months imprisonment;

Charge 4 – 10 months imprisonment concurrent to charge 1; and

Charge 5 – 1 year and 11 months imprisonment

6 months consecutive and 1 year and 5 months concurrent to charges 1 & 4;

D2

Charge 1 – 2 years and 6 months imprisonment; and

Charge 6 – 12 months imprisonment;

2 months consecutive and 10 months concurrent to charge 1;