HKSAR v. SUM YIU MAN

 DCCC578/2009

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 578 OF 2009

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Reasons for Sentence

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1.  The defendant has pleaded guilty to two charges.  The 1st charge is one of attempted burglary.  The particulars of the offence are that on 4 May 2009, he attempted to enter a small restaurant in Un Chau Street, Sham Shui Po, with intent to steal.  The 2nd charge is a charge of resisting arrest in connection with a police officer who witnessed the 1st charge and tried to arrest the defendant.

2.  The facts admitted by the defendant disclose that at 2.35 in the morning of 4 May this year, 2009, three police officers were on plain-clothed patrol duty in a government vehicle in Un Chau Street.  The defendant was seen squatting down outside a Japanese food shop at No.162-188, Un Chau Street.  The defendant was using a crowbar which was wrapped with a blue jacket and trying to prise the roller gate of the shop.  One of the officers approached the defendant who immediately ran away to a nearby building, pursued by the officer.

3.  Whilst running through that building, the officer saw the defendant dropping the crowbar and the blue jacket into a rubbish basket on the 3rd floor of the building.  While chasing the defendant, the officer shouted from time to time, “Police, don’t run.”  The officer managed to intercept the defendant in the near vicinity.  There was a struggle in which the defendant used his hands to push away the officer and punched the officer’s chest and face with his fists.  After the struggle, the defendant fled. 

4.  After chasing the defendant again for a short distance, the officer managed to stop him and there was a further struggle.  The officer saw the defendant rushing towards him and upon that, the officer drew out his revolver.  The defendant turned around and fled.  The officer chased the defendant and tried to handcuff him.  Two other officers joined the chase and the defendant was eventually intercepted. 

5.  The police got in contact with a staff member of the shop.  He confirmed that the roller gate of the shop was secured and locked when he left the shop after business on 3 May.

6.  The officer who had struggled with the defendant was sent to Caritas Medical Centre for examination and was found to suffer tenderness on his left middle finger and abrasions on his right hand, right elbow and left knee.

7.  The defendant has a number of previous convictions.  He has appeared before the court on seven previous occasions in relation to 12 charges.  Three of the charges involve offences of dishonesty.  He spent periods of imprisonment for substantial terms in the past.  His last incarceration was in 2005 where for a number of offences he was sent to prison for a total of 3 years. 

8.  I am told that the defendant is 34 years of age, he is born in Hong Kong.  He has a younger brother in China and his only relative in Hong Kong is his father who works as a garbage collector.  His father is aged 62.  I am told that after the defendant’s last release from imprisonment, he found it impossible to get any stable employment and worked as a casual transportation worker.  Because of his financial situation, he decided to commit this offence to earn some easy money.

9.  I am told that the resisting arrest arose because the defendant panicked when he was pursued by the officer.

10.  As regards the charge of attempted burglary, it was committed in the middle of the night.  It was clearly a premeditated attempt as the defendant was equipped with a crowbar and he wrapped that in a blue jacket presumably to avoid fingerprints being left on the crowbar.  Having been spotted by the officer, the defendant put up a determined attempt to try to escape.  At one stage the officer was obliged to draw his revolver to try and stop the defendant. 

11.  The defendant has also got a number of previous convictions recorded against him.  The only mitigation really in this case is the fact that he has pleaded guilty.

12.  Taking all the various features I have mentioned into account, I take a starting point of 2½ years for the 1st charge and I reduce that by one-third to reflect the guilty plea, so that sentence will be  one of 20 months.

13.  As regards the 2nd charge, fortunately, the injuries sustained by the officer were minor.  However, it was a determined effort to escape and the officer was put in jeopardy.  I take a starting point of 9 months for that and reduce it by one-third to reflect the guilty plea, and I order that the sentence of 6 months run consecutive to the sentence on Charge 1.  I have taken into account the totality when arriving at that sentence.

14.  The total sentence will therefore be one of 26 months’ imprisonment. 

15.  There was on the charge sheet a third charge.  At the outset, the prosecution indicated that if the defendant pleaded guilty to the first two charges and admitted the Summary of Facts, they would invite the court to ask for the 3rd charge to be left on the court file, not to be proceeded with without the leave of either this court or the Court of Appeal.  I therefore make the order that the 3rd charge will remain on the court file, not to be proceeded with without the leave of this court or the Court of Appeal.

(Discussion re maximum penalty for Charge 2)

16.  With regard to be second charge I take 6 months as the starting point, I reduce it to 4 and order that it run consecutive, so the total sentence is 24 months.