HKSAR v. KWAN WING LEUNG AND OTHERS

DCCC839/2011

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 839 OF 2011

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Reasons for Sentence

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1.  D2, you denied Charge 1, an offence of burglary, but pleaded guilty to Charge 2, which was also an offence of burglary, each contrary to section 11(1)(b) and (4) of the Theft Ordinance, Cap.210.

2.  All three of you pleaded guilty to Charge 3, an offence of attempted burglary, contrary to section (11)(1)(a) and (4) of the same ordinance and section 159G of the Crimes Ordinance, Cap.200. 

3.  D3, you also pleaded guilty to the 4th charge, which is possession of infringing copies, contrary to sections 118(1)(f) and 119(1) Of the Copyright Ordinance, Cap.528. 

4.  Each of you admitted the facts to the charges to which you pleaded guilty and I convicted you.

5.  Charge 1 was ordered to be left on file and not to be proceeded with without leave of this court or the Court of Appeal. 

6.  Briefly, the facts were as follows.   

7.  Charge 2, which relates to you, D2.  At around 9.30 pm on 15 March of this year, PW2, the owner of H Miracle fashion shop, No. 611, CTMA Centre, placed a notebook computer valued at $6,000 and cash of about $3,500 in a locked drawer.  He secured the gate of the shop and left.  At about 3.50 pm the next day, he returned to the shop to find the gate unlocked, the drawer prised open, and the notebook computer and cash missing.  CCTV footage of the CTMA Centre captured images of you, D2, and two other males.   

Charges 3 & 4

8.  At around 11.30 pm on 7 May 2011, PW4, a member of staff of Tung Yan Bird Nest store at A1, Ground Floor, Hon Kwong Mansion, 25-29 Hankow Road, Tsim Sha Tsui, secured the padlock on the roller gate and left. At about 6.30 am on 8 May, police officers, including PWs 6 to 8, were on mobile patrol in the vicinity of the store.  PW6 saw you, D1, squatting before the roller gate holding a large size pliers-like object, which is E4, and squeezing its handle bar in a cutting motion at the bottom of the gate.

9.  A light goods vehicle was parked in the lay-by outside the store 2.5 metres away and obscuring you, D1.  The officers parked next to this vehicle and observed you, D1.  Upon alighting, PW6 saw you wrap E4 in a pair of jeans and place them in a nylon bag.  You then fled and boarded the rear of the LGV.  PW6 kept the doors open and prevented the vehicle from leaving.  You, D1, and you, D2, were sitting in the rear compartment, and you, D3, were at the driver’s seat. 

10.  PW6 found prising marks on the padlock of the roller gate.  A nylon bag containing the jeans and pliers, a crowbar, and two empty nylon bags were found inside the vehicle.  Also found were three cartons of suspected infringing copies of DVDs, totalling 1,150 copies.    

11.  The various goods inside the store itself were worth in the region of $7 million. 

12.  You three were all arrested.  Under arrest and caution, D1, you remained silent, whereas you, D2, at scene and in a subsequent video-recorded interview admitted you were there to commit burglary with D1 and D3.  You were to be paid several thousand dollars.   

13.  D3, at the scene and in a subsequent video-recorded interview, admitted owning the DVDs, which you intended to sell on the street.  Those DVDs were examined by the Customs & Excise Department and 198 were found to be infringing copies.   

14.  D2, in a video-recorded interview, you admitted in respect of Charge 2 going with Ah Wing and Taxi Man to burgle the shop in question.  You acted as a lookout, but went into the shop and took the computer and $500 cash.  The missing property was not recovered. 

15.  D1, you admitted to 12 previous convictions, many of which involve dishonesty.  D2, you admitted to 11 previous convictions, nearly all of which involve dishonesty, and D3, to five previous convictions, none of which involve dishonesty. 

16.  Mr Si entered mitigation on behalf of you, D1.  He told me you are 33 years of age, educated to Form 3.  In June 2010, you married a lady of 28 in the Mainland.  You have a father and a sister.  Your mother died some time ago.  You have had various jobs in the past, but since May 2010 you have been unemployed.  You live alone and receive only $3,500 by a way of public assistance.  You committed the offence out of poverty. 

17.  Mr Si made the point that the only damage involved in this case was to the padlock and nothing was taken.  On your behalf he asked for leniency.   

18.  Mr Lee then entered mitigation on behalf of you, D2. He told me that you are 25 years old and you reside with your mother and sister.  Your mother is in receipt of public assistance.  You were educated to Form 3.  You have had various jobs as a waiter, a courier, and a seller of mobile phones, and performing all three tasks at the same time and earning about $10,000 a month, $1,000 at least you gave to your mother.  Since 2007, you have had a steady girlfriend.  Since your release from prison you have been unemployed, that was in March 2011.     

19.  You are, I am told, a regular church-goer, and through your involvement at the church you have performed community service and other volunteer works.  The reason you committed this offence was because you could not get back your old job.  You did not qualify for public assistance. 

20.  For the burglary in Tsim Sha Tsui, I understand you received just over a thousand dollars.  For the attempted burglary, which is Charge 3, you were promised several thousand Hong Kong dollars.   

21.  Mr Lee produced and read out a letter that you had written to court.  In that letter you expressed remorse and an intention to turn over a new leaf.  Mr Lee also emphasised how cooperative you were with the police upon arrest and in the video-recorded interview.  He asked me for leniency and to apply the principle of totality to the two offences.

22.  Mr Wong then entered mitigation on behalf of you, D3.  He told me you are 28 years of age, you live with your girlfriend and baby in Sham Shui Po.  You worked as driver for a laundry earning $11,000 per month.  The van used in the attempted burglary belonged to the laundry company.  Whilst he acknowledged your record, he pointed out these were unrelated to this type of offence and minor. 

23.  In respect of the 4th charge, he made mention of the fact that there were only about 200 infringing copies and asked me to take into account the principle of totality.    

24.  I turn now to the sentence. 

25.  In fairness, the only real mitigation advanced is your plea of guilty.  However, in each case, I have taken into account the mitigation that has been advanced, the usual tariff, and the facts of the cases. 

26.  I note you, D1, and you, D2, have very poor criminal records involving offences of dishonesty in the past, whilst you, D3, I cannot say that your record was good, it is not of the worst. 

27.  I note also that D2 and D3 were cooperative with the police upon arrest, and I note also that Charge 3 was an attempt and nothing was actually taken and little damage was done. 

28.  D1, on Charge 3, I take as a starting point 27 months, reduced to 18 months for your plea of guilty. 

29.  D2, on Charge 2, I take as a starting point the usual 30 months, reduced to 20 months for your plea of guilty; on Charge 3, 27 months, reduced to 18 months for your plea of guilty.  I apply the principle of totality and 9 months of that 18 months will be served consecutively and 9 months concurrently, making a total imprisonment of 29 months in your case.

30.  D3, on Charge 3, I take a starting point of 27 months, reduced to 18 months; on Charge 4, I take a starting point of 3 months, reduced to 2 months for your plea of guilty, one month will be concurrent, one month consecutive to apply the principle of totality, and that is a total of 19 months in your case.

31.  Finally, I thank counsel for their assistance.