HKSAR v. LEUNG CHI YUNG

DCCC 324/2023

[2024] HKDC 671

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 324 OF 2023

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REASONS FOR SENTENCE

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1.  D1, together with others, was charged with one count of Burglary, contrary to section 11(l)(b)  and (4)  of the Theft Ordinance, Cap 210. D1 pleaded guilty to the charge.

FACTS

2.  “Siu Lo” House (the “House”), a Grade 3 historical building, is located at Lot No 1695 in DD120, Tai Kei Leng, Tai Tong Road, Yuen Long.

3.  On 28 July 2022 at around 2100 hours, D1 and 2 unknown males walked into the House. Then they took out a number of items of furniture from the House and subsequently loaded them into a goods vehicle. Approximately 30 minutes later, the goods vehicle was driven away with the stolen furniture with D1 and 2 unknown males on board.

4.  The items of furniture stolen were:

(i)  One old wooden cabinet;

(ii)  One old wooden screen;

(iii)  One old wooden shelf;

(iv)  Seven old wooden chairs;

(v)  Three decorative pieces of porcelain;

(vi)  Three old wooden trays; and

(vii)  Ten new chairs.

5.  The total value of the furniture is HK$100,000. The furniture has not been recovered.

CRIMINAL RECORD

6.  D1 has 6 previous convictions in 5 court appearances, all of them are not burglary related.

MITIGATION

7.  D1 is aged 42. He was born in China. He is married with two children.

8.  Mr Leung, on D1’s behalf, submitted that D1 is a psychiatric patient at the Castle Peak Hospital and needs to attend medical treatments there regularly. He is mentally fit to plead. A mitigation letter from D1 was submitted for the court’s consideration. It demonstrated that D1 was remorseful and regrettable about the offence committed.

9.  It was submitted that the House was unoccupied pending redevelopment by the owner, Kato (Hong Kong)  Holdings Limited. As confirmed with the prosecution, it is considered to be a non-domestic premise. In relation to the guidelines for sentence in burglary cases, the starting point for non-domestic premises is 2 ½ years’ imprisonment (R v Wong Man [1993] 1 HKC 80).

10.  Mr Leung admitted that the aggravating factor in the present case was D1 acting in concert with others when committing the offence. But the operation was not sophisticated save that the metal chain applied in securing the gate to the metal gate of the House was cut.

11.  In this case, Mr Leung submitted that although D1 did not indicate his guilty plea at the first opportunity during the mention hearing earlier, D1 pleaded guilty before commencement of trial. D1 should be entitled to a discount in the range of 20 to 25% (HKSAR v Ngo Van Nam [2016] 5 HKLRD 1).

SENTENCE

12.  There is a well settled sentencing guideline for burglary of non-domestic premises. According to the guideline, the starting point for a single burglary of non-domestic premises where there are no aggravating or mitigating features is 2 ½ years’ (30 months)  imprisonment (Attorney General v Lui Kam Chi [1993] 1 HKC 215).

13.  According to the facts admitted, the property stolen was furniture related and the value was HK$100,000. The furniture was not recovered. The defence addressed the court in mitigation submission, that the metal chain applied in securing the gate to the metal gate of the House was cut. It could also be shown in the facts that a goods vehicle was arranged for the moving of the stolen property. It, therefore, involved a measure of planning, and thus a degree of premeditation.

14.  In HKSAR v Cheng Wai Kai CACC 338 /2007 (para 15), the starting point can be adjusted upwards if there are aggravating circumstances such as (1)  the offence is carefully planned and skillfully executed involving the use of heavy instrument or equipment; (2)  the offence is committed by two or more people; (3)  the offence targets at substantial premises and involves substantial properties; (4)  the offender is a professional burglar and not just an opportunist; (5)  the offender has previous convictions, particularly previous conviction of similar nature; and (6)  the offender commits multiple offences.

15.  I have considered the facts of the case including the value and nature of the property stolen, the mitigation submitted by Mr Leung on behalf of D1 and the background of D1. I find that the starting point in this case is 2 ½ years’ (30 months)  imprisonment.

16.  I am aware that the offence took place in a building pending for redevelopment and was unoccupied. D1 in this case committed the offence jointly with other persons. This is an aggravating factor.  I enhance the sentence by 3 months.  As such, the starting point for the sentence is 33 months’ imprisonment.

17.  Upon D1’s guilty plea before commencement of trial, a reduction of 7 months is warranted (ie a sentencing discount of 21%)  for the charge.

CONCLUSION

18.  The sentence for the case is 26 months’ imprisonment.