HKSAR v. FUNG SHUN TIM

DCCC971/2009

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 971 OF 2009

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Reasons for Sentence

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1.  The defendant has pleaded guilty to four charges of Burglary.

2.  The 1st offence took place on 30^th June this year, $13,000 was stolen from a restaurant in the middle of the night. Less than a month later the same restaurant was burgled, again in the middle of the night and the loss suffered was $12,500 odd.

3.  A few weeks later a team of police officers, on 2 August were conducting an anti-burglary operation in the Mong Kok area. At about 1 am, a police officer spotted the defendant acting suspiciously in a rear lane of Canton Road. He was carrying a bag which later subsequently was found to contain tools and $7,000 cash.

4.  Before he was arrested he was observed trying to enter two premises. I must clarify; in fact the 3rd and 4th charges were attempted burglary charges. The police saw him attempting to enter two premises. He later admitted this attempt but could find nothing to steal. Upon further questioning, he admitted he could not actually physically enter the shops despite trying. He admitted the tools he was carrying were for the purpose of burglary.

5.  He also, under caution, admitted the 1st and 2nd offence. The ultimate loss to the restaurant in relation to charges 1 and 2 is about $20,000.

6.  The defendant, I have been informed in mitigation, is 64 years old. He has many previous convictions and has spent most of his adult life in and out of prison. He has many similar burglary convictions, which could be taken as an aggravating factor. I have been told, in mitigation, that the defendant does have a family to support and a teenage son as well as a wife suffering from ill health and their financial situation was dire leading him to commit these offences to support the family’s livelihood.

7.  The defendant’s best mitigation today is his plea of guilty and his full cooperation with the police. In particular, in admitting charges 1 and 2. Attempted offences are treated no differently than completed offences. The other mitigation put forward is the defendant’s ill health.

8.  Since his arrest, the defendant has been diagnosed with two serious diseases. I obtained a medical report which I have before me today. After his arrest he was seen by a doctor and discovered to be suffering from chronic obstructive pulmonary disease, COPD. Several weeks later, whilst in custody, he was admitted again into hospital because of this disease and it had exacerbated. He was discharged three days later. On 26 August he was admitted to Queen Elizabeth Hospital, due this time to a perforated gastric ulcer. An operation was performed and he was discharged on 3 September.

9.  On 5 September he was re‑admitted due to a persistent high fever. Whilst admitted for this persistent high fever he was diagnosed with a liver cell cancer. On 17 October he was given a course of chemotherapy. He has been in hospital twice since that date. It appears that his liver cancer is inoperable and only chemotherapy treatment can be given. I have no details before me as to the seriousness of this disease or at what stage this disease is at. Clearly the defendant is very ill and I am sure the defendant’s life of crime is now at an end.

10.  The question is how much of this can I take into account in sentencing? It has been said before that where there are crimes of gravity, serious crimes, ill health is not a basis for reduction in sentence. However, although these non-domestic burglaries are serious they are not of significant gravity.

11.  On the other hand, the defendant will receive excellent health treatment whilst in custody. I will take into account the defendant’s poor health but it is not grounds for a significant reduction in sentence. I am sure it has been explained to the defendant that the normal tariff for offences of burglaries of non-domestic premises, where there are no aggravating factors is 2 years and 6 months starting point.

12.  Because of the mitigation I have before me and the defendant’s ill health, I will take a lower starting point for each offence. I will take a starting point of 2 years. The defendant has pleaded guilty today and is entitled to a discount of 16 months.

13.  This is how I will sentence you. You can remain seated, defendant. For each charge I will impose a sentence of 16 months. Now I have considered the totality principle and these offences are not committed one after the other. There is a time gap between certainly the 1st, 2nd and 3rd offence. However, they were committed close enough for me to order that all four sentences be served concurrently. That is a total of 16 months’ imprisonment. That is, a sentence of one year and 4 months.