HKSAR v. JEN CHIEN LUN

DCCC30/2012

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 30 OF 2012

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Reasons for Sentence

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1. Defendant, you have pleaded guilty to one charge of burglary, contrary to section 11(1)(b) and (4) of the Theft Ordinance, Cap. 210. You admitted that on 31 May 2003, you burgled a commercial premises in Tau Kwa Wan and stole a lighter valued at $2,200, a diamond ring valued at $4,000, a jade ring valued at $1,200, two mobile phones valued at $1,400, a watch valued at $5,000, a notebook computer valued at $17,000 and cash of $3,000 totalling $33,800.

2. The premises was an industrial premises in an industrial building and was the location of a logistics company.  When the staff member of the logistics company returned to the company early in the morning on 31 May having left at about 1.30 am, he noticed that the premises was ransacked and he saw two empty bottles of Perrier which were in the premises that were not there earlier that day.  DNA samples were obtained from one of the Perrier bottles and in 2010 the Government Laboratory confirmed that the DNA sample obtained from that bottle matched your DNA.  As can be seen from the facts, it was not known that you had committed this burglary until some time in 2010, some seven years after the commission of this offence.

3. Your solicitor, Mr S C Chan, has made full and thorough mitigation on your behalf before me today and I am taking all that he has to say into account.  You are aged 52, now single but lived with the girlfriend in Tuen Mun. 

4. You have a total of 12 convictions and nine of those charges are for burglary and one for is for attempted burglary.  What, however, I must bear in mind that at the time of commission of this burglary offence, that is in 2003, you would have had then five burglary offences and one attempted burglary.

5. On 30 December 2010, you were sentenced to 28 months for a further four burglary charges each to run concurrent with each other.  The relevance of me mentioning these offences is because your solicitor, Mr Chan, submits that the present burglary offence, this is the one before me today, should have been brought to court at the same time as these other four burglary offences and/or a very short time after you had been sentenced for those four offences so that I would have considered the principle of totality in this case. 

6. The reason being is Mr Chan submits that the mucal swabs for DNA were taken from you in February 2010 and the forensic report stating that your DNA matched with the present case was ready in October 2010, therefore this present case DCCC30 of 2012, should have been brought up together with the case DCCC670 of 2010 which you were sentenced to 28 months’ imprisonment on 1 December 2010. As it happened, I am informed that for that case in DCCC670 you were released from prison on 16 September 2011 and approximately three months later you were arrested for this offence, that is on 20 December 2011 at Lo Wu Immigration Cross Border.  Since that date you have been custody.  Although you were granted bail, your surety did not attend court.

7. Mr Lau’s explanation for this case not being brought up with DCCC670 or consolidated is because this offence took place so many years beforehand that the police required time to investigate further matters into this burglary and another five other burglaries which happened since 2003.  Your DNA had matched with six of these outstanding crimes, however police came to the conclusion to proceed with only two of which are in respect of this case and one of those was left on the court file.

8. I accept it was over a year, despite the police having evidence that your DNA matched in this case that no charges were brought against you and I accept that if the case had been brought within the year or near to the time of which you were still serving your sentence, the court would have taken into account the principle of totality in this present case and the other case DCCC670 to which you were serving time.  In those circumstances, I am prepared to temper justice with mercy and consider that had this case come up before the court earlier this court would have and should have taken into account the principle of totality. 

9. When considering the sentence in this case, I course bear in mind that the present charge is one of burglary of a commercial premises and there are clear guidelines laid down by the Court of Appeal of which the appropriate starting point is one of 2½ years’ imprisonment after trial.  However, this offence would have been your sixth burglary offence and in those circumstances I consider a higher starting point would have been appropriate as that is clearly an aggravating factor.  In those circumstances I would have taken a starting point of 36 months’ imprisonment. 

10. You had pleaded guilty which shows me your genuine remorse and in those circumstances as a result of your plea of guilty you shall receive one-third discount and that 36 months shall be reduced to 24 months’ imprisonment. 

11. For the reasons I have stated earlier that I would have taken into account the principle of totality in respect of the sentence you were serving in DCCC670 of 2010, I would have ordered 6 months of this term to run consecutive to that term.  So to reflect that further 6 months and therefore the sentence in this charge would be reduced to that of 6 months’ imprisonment.  So you are sentenced to 6 months’ imprisonment.