HKSAR v. LING SUN YAT-MUN AND ANOTHER

DCCC 355/2013

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 355 OF 2013

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Reasons for Sentence

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Charges and facts

1.  The defendant was trying to open the metal gate of Rooms 1207 and 1208 respectively on 12^th Floor of a public housing estate in Kwai Shing, N.T. when the police intercepted him.  He failed to explain his presence there.  After arrest and caution, he replied that he had intended to enter to steal from the flats if the gates and the doors were not secured but he had not taken anything.  He had taken the lift to 22^nd Floor and walked down each floor to look for targets.  These facts form 2 attempted burglaries, ie Charges 12 and 13. 

2.  In a subsequent VRI, he admitted 11 other burglaries at other public housing estates in Cheung Sha Wan, Sham Shui Po, Shek Kip Mei, Ho Man Tin and Tuen Mun.  He had followed residents into the public housing blocks and looked for unsecured gates and doors.  He had stolen cash of not more than HK$3,000, bank cards, personal cards, personal documents, personal clothing or items, etc. in each instance.  Those offences took place between the 9 months between 27 April 2012 and 30 January 2013.   He had spent all the monies stolen on living and gambling.  The other property were discarded except an Octopus card from one of the offences.  He had forgotten to discard it.        

Personal background and mitigation

3.  He is 45 years of age, of F. 2 education level.  He had done various unskilled jobs until 2004.  His parents had passed away.  He has no siblings or friends. He committed the present offences to cater for his basic needs as he could not get along with colleagues, hence losing jobs.  He had 18 convictions for burglary.  He has been a recidivist burglar.        

Sentencing considerations

4.  For burglary of domestic premises, 3 years would be the proper starting point for a first offender of full age (R v. Chan Yui Man CACC 36/1988).

5. A lower starting point might be adopted for a sneak thief who had no prior planning and entered without break-in (HKSAR v Sim Ka-wing, CACC 450/2000).

6.  Multiple burglaries committed at different flats against different victims on different dates would call for consecutive sentences but subject to totality adjustment. Previous similar records would also be an aggravating factor (AG v. Lui Kam Chi [1993] 1 HKC 215).    

7.  As an example, a professional burglar for 13 non-domestic burglaries, which were distinct and separate, over a period of 4 months had the notional overall starting point reduced from 9 years to 6 years on appeal (HKSAR v. Fan Kit Hung [2009] 6 HKC 314).     

Sentencing present defendant

8.  He was a professional sneak thief who targeted unsecured flats by following residents into the public housing blocks.  His previous sentences due to similar convictions had failed to deter him.  I take 2 years 3 months (ie 27 months) as the starting point for Charges 1 – 11.  For the 2 attempted burglaries with no actual entry or loss, ie Charges 12 and 13, I take 1 ½ years (ie 18 months) each as the starting point.  There ought to be consecutive sentences as each burglary was distinct and separate.  His only mitigation is his pleas of guilty.  He can have a one-third discount.  That means 9 months off for each burglary and 6 months off for each attempted burglary.        

9.  I sentence him to 3 ½ years (ie 42 months) based on the following totality adjustment:

(1) Charge 1, 18 months to be served;

(2) Charges 2 – 13, 2 months of each consecutive to other charges, ie 24 months extra.