HKSAR v. LEUNG KWOK HUNG AND OTHERS

DCCC 790/2016

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 790 OF 2016

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REASONS FOR SENTENCE

D1 pleaded guilty to a charge of "Handling stolen goods" (Charge 2). D2 pleaded guilty to a charge of "Burglary" (Charge 1). D2 and D3 face a joint charge of "Handling stolen goods" (Charge 3). D2 pleaded guilty to Charge 3 as well. The prosecution offered no evidence against D3; Charge 3 against her was dismissed accordingly.

Summary of Facts

1^st Incident

2.  Madam LAW (PW1) resided at a room in Good Mong Kok Hotel, Sincere House, No.83 Argyle Street, Kowloon ("Unit 1").  She went out to lunch around 1:00 p.m. on 26 May 2016 after locking up.  She returned around 2:00 p.m. and found the door properly locked.  After opening the door, she found Unit 1 having been ransacked.

3.  Upon checking, PW1 found the properties particularized in Charge 1 missing from Unit 1.  She alerted the Police.

2^nd Incident

4.  Madam LEUNG (PW2) resided at a flat situated at Hoi Lam House, Hoi Fu Court, Mongkok ("Unit 2").  She left home around 10:40 a.m. on 1 June 2016.  When she returned later on the same day, she found Unit 2 having been ransacked.

5.  Upon checking, she found 2 handbags, 5 watches, 1 clock, 5 necklaces, 3 lighters, 7 pairs of earrings, 4 rings, 3 wrist chains, 2 pendants, £300 cash and HK$100 cash missing from Unit 2.

Arrest and Admissions

6.  On 14 June 2016, DPC 11927 stopped and searched D1 on the street.  A pair of earrings, 2 rings, 2 pendants, 3 wrist chains, 2 necklaces with charms, 1 necklace, 3 mobile phones and some cash were found on D1.

7.  In the evening on the same day, D2 and a female (X) were stopped and searched at a games arcade by police officers.  A pawnshop ticket was found on X. 

8.  In his video recorded interview, D2 admitted that he had directed X to pawn a ring; and he waited outside the pawnshop whilst she was doing so.  This is Charge 3.

Supporting Evidence

9.  CCTV footage of Sincere Building captured D2 appearing at the corridor outside Unit 1 around 1:25 p.m. on 26 May 2016.  This is Charge 1.

10.  PW2 identified 3 necklaces (2 of which with charms), 1 pair of earrings, 1 ring, 3 wrist chains and 2 pendants (all seized from D1) as her properties which were stolen from Unit 2 on 1 June 2016.  This is Charge 2.

11.  Investigation of the pawnshop ticket seized from X was conducted.  A ring (valued at $2,000), which was pawned on 2 June 2016 by X, was recovered from the pawnshop.  PW2 identified that ring as her property which was stolen from Unit 2 on 1 June 2016.

12.  D2 and X were cohabitees at the time of arrest.  Their residence was searched and a pink suitcase was found.  PW1 identified that pink suitcase seized from the residence of D2 and X as her property which was stolen from Unit 1 on 26 May 2016.

Mitigation

D1

13.  He is 51 and has 19 conviction records, which included 1 "Handling stolen goods" offence, 13 theft-related offences and 6 drug-related offences.  His counsel Mr. SO informed me that D1 was a kennel cleaner but became unemployed since May 2016 due to bile duct problems.  In mitigation, Mr. SO submitted that D1 was a mere handler; he received the stolen properties from a friend, who owed D1 $3,700.

14.  Regarding the discount for guilty plea, Mr. SO submitted that D1 was arrested on 14 June 2016 for a drug offence and the stolen properties in Charge 2 were found on him.  The prosecution somehow decided to bring the charges against D1 in 2 separate cases.  He received the benefit of the full one-third discount in the drug case (DCCC 723/2016) and has finished serving the sentence in that case.  Mr. SO explained that D1 has written to the Department of Justice twice making plea offers in relation to the present case, but was unsuccessful on both occasions.  The 3^rd offer was made on the 1^st day of trial and was accepted.

D2

15.  He is 41 and has 38 conviction records, which included over 30 "Theft" offences and 1 "Aiding and abetting burglary" offence.  His counsel Mr. TSE informed me that D2 and D3 have a son (13 months old) and a daughter (3 months old).  D2 was a lorry attendant earning $300 per day, but could only get work 3 to 4 days per week.  D3 is a homemaker.

16.  In mitigation, Mr. TSE submitted that at the time of the present offences, D2's son was only 3-4 months old.  He was under much financial pressure then.  A letter from D3 was placed before me; its contents are duly noted.  Mr. TSE stressed that D2 was arrested in mid-June 2016, but his 1^st appearance in the District Court was not until 20 September 2016.  Had the old law governing guilty plea discounts been applicable, D2 would have been entitled to a one-third discount.

Sentence

17. Time after time, the court has expressed in very clear terms that being in financial difficulty (however serious) is no mitigating factor for committing a crime.

18. Although with almost no conviction of burglary-related offences or "Handling stolen goods", D1 and D2 are no doubt repeated offenders of theft-related crimes. I have all the reasons to increase the starting point for the present offences in order to reflect an element of deterrence. After careful consideration, I have decided not to do so.

19. Regarding the discount for their guilty pleas, I consider it appropriate to grant both D1 and D2 the full one-third discount. The Court of Appeal decision which brought about the new practice for discounts on guilty pleas[1] was made on 2 September 2016 (just a few weeks before the present case came to the District Court). I see continuing efforts of making plea offers to the prosecution, especially by D1. The prosecution accepted the plea offers from D1 and D2 respectively on the 1^st and 2^nd day of trial.

20. For D1, I adopt 2 years' imprisonment[2] as the starting point for Charge 2. With the guilty plea, his sentence is reduced to 16 months. Apart from this, I see no other mitigating factors which warrant any further reduction. I sentence D1 to 16 months' imprisonment for Charge 2.

21. The Court of Appeal in HKSAR v NG Wai-hing [2003] 2 HKLRD 338 held that burglary of a hotel room should at least attract the same sentence as that of domestic premises. The normal starting point for domestic burglary is 3 years' imprisonment. For D2, I adopt 3 years' and 2 years' as the respective starting points for Charges 1 and 3. With the guilty pleas, the sentences are reduced to 2 years and 16 months respectively. I sentence D2 to 2 years' and 16 months' imprisonment respectively for Charges 1 and 3. Bearing in mind the totality principle, I order the sentence for both charges to run concurrently.

22. In my view, the court can only do so much in deterring persistent offenders by way of heavy penalties. Whilst the sentence must carry a deterrent effect, the increase in the sentence cannot go out of proportion. I accept that there are limits in our penal system. If D1 and D2 refuse to reform and to live a law-abiding life, that is their choice, and they will have to face the consequences.