HKSAR v. LEUNG TSZ FUNG, RINGO

DCCC 740/2017 & 47/2018

(Consolidated)

[2018] HKDC 1130

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 740 OF 2017 & 47 OF 2018

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REASONS FOR SENTENCE

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1.  Defendant Leung Tsz Fung, Ringo, is being charged before me of 19 charges of Burglary, all contrary to section 11(1)(b) and (4) of the Theft Ordinance, Cap 210 (Charges 1 to 20 except Charge 6); and one charge of Using a false instrument, contrary to section 73 of the Crimes Ordinance, Cap 200 (Charge 6).

2.  Mr Leung pleaded guilty to Charges 5, 6, 7, 10, 11, 14, 15, 16, 17, 18, 19 and 20 (in total 12 charges).  The prosecution asked that the remaining charges be left on court file not to be proceeded with without the leave of this court or the Court of Appeal.  I so ordered.

3.  Particulars of Charge 5 are that he, having entered as a trespasser part of a building known as Room E037, “storefriendly”, Flat A, 6^th Floor, Eldex Industrial Building, No 21 Ma Tau Wai Road, To Kwa Wan, Kowloon, stole therein 27 boxes of toys.

4.  Particulars of Charge 6 are that he, on 12 August 2016, in Hong Kong, used an instrument which was, and which he knew or believed to be false, namely a cheque numbered 103413 dated 12 August 2016, in the sum of $8,157 Hong Kong currency, with the intention of inducing the staff of The Hongkong and Shanghai Banking Corporation Limited to accept it as genuine, and by reason of so accepting it to do or not to do some act to his own or any other person’s prejudice.

5.  Particulars of Charge 7 are that he, on 1 June 2017, in Hong Kong, having entered as a trespasser part of a building known as Room FO5041, “SC Storage”, Flats 515-516, 5^th Floor, Fo Tan Industrial Centre, Nos 26-28 Au Pui Wan Street, Fo Tan, New Territories, stole therein 18 pieces of toys.

6.  Particulars of Charge 10 are that he, on 4 August 2017, in Hong Kong, having entered as a trespasser part of a building known as Room K3-57, “Lucky Storage”, 8^th Floor, Career and Kenson Industrial Mansion, No 58 Hung To Road, Kwun Tong, Kowloon, stole therein about 100 pieces of toys.

7.  Particulars of Charge 11 are that he, on 5 July 2017, in Hong Kong, together with a person known as “Sam”, having entered as trespassers part of a building known as Room S13D60, “Lucky Storage”, Flats C and D, 12^th Floor, Chiu Tat Factory Building, Nos 108-110 King Fuk Street, San Po Kong, Kowloon, stole therein 30 boxes of toys.

8.  Particulars of Charge 14 are that he, on 19 July 2017, in Hong Kong, having entered as a trespasser part of a building known as Room TY1-97, “Lucky Storage”, Flats C13-14, 7^th Floor, Block C, Tsing Yi Industrial Centre Phase II, Nos 1-33 Cheung Tat Road, Tsing Yi, New Territories, stole therein about 100 boxes of toys.

9.  Particulars of Charge 15 are that he, on 20 July 2017, in Hong Kong, having entered as a trespasser part of a building known as Room TY1-33, “Lucky Storage” located in the same premises as in Charge 14, stole therein 30 boxes of toys.

10.  Particulars of Charge 16 are that he, on 26 July 2017, in Hong Kong, having entered as a trespasser part of a building known as “Lucky Storage” located in the same premises as in Charge 14, stole therein about 200 pieces of toys.

11.  Particulars of Charge 17 are that he, on 3 August 2017, in Hong Kong, having entered as a trespasser part of a building known as Room TY1-77, “Lucky Storage” located in the same premises as in Charge 14, stole therein some toys.

12.  Particulars of Charge 18 are that he, on 31 July 2017, in Hong Kong, having entered as a trespasser part of a building known as Room 3, “Easy Storage”, 4^th Floor, Block C, Eldex Industrial Building, No 21 Ma Tau Wai Road, To Kwa Wan, Kowloon, stole therein one box of fish maw, about 30 cans of Korean Ginseng, one box and cash of about $4,000 Hong Kong currency.

13.  Particulars of Charge 19 are that he, between 11 and 12 June 2017, both dates inclusive, in Hong Kong, having entered as a trespasser part of a building known as Room L38, “IN n OUT Storage”, 14^th Floor, Shing Dao Industrial Building, No 232 Aberdeen Main Road, Aberdeen, stole therein 35 boxes of toys.

14.  Particulars of Charge 20 are that he, between 10 and 12 June 2017, both dates inclusive, in Hong Kong, having entered as a trespasser part of a building known as Rooms M56-57 and M70-71, “IN n OUT Storage” located in the same premises as in Charge 19, stole therein 1 box of model, 3 vases, 3 plates for vases and 4 bags.

ADMITTED FACTS

15.  The facts admitted by Mr Leung may be summarized as follows.

EVENTS OF 2016

Charge 6 – Using a false instrument

16.  On 12 August 2016, Mr Leung registered for a ministorage room at “storefriendly” situated at Flat A, 6^th Floor, Eldex Industrial Building, To Kwa Wan.  In the process, he used an HSBC cheque in the sum of $8,157 purportedly issued by Wong Ming Chit Amos the account holder.  An electronic access card was issued to Mr Leung the same day.  The process of registration was captured by CCTV.

17.  In fact, the cheque came out of a cheque book stolen from the account holder only 6 days prior.  In the end, the cheque was bounced due to insufficient funds.

Charge 5 – Burglary

18.  In the afternoon of 14 August 2016, the manager of “storefriendly” found the padlock outside and the items inside Room E037 to be missing.  She alerted the licensee who came to inspect and found upon inspection that 27 boxes of toys (valued at $49,155) were missing.

19.  CCTV footage shows Mr Leung entered “storefriendly” at about 1:49 am on 14 August 2016 and wandered around and looked into a number of storage rooms by using a ladder.  Mr Leung was seen to have left at 2:02 am the same day.

20.  CCTV footage also shows a male in a green jacket with a facemask entered “storefriendly” and took some goods away with a cart at about 5:44 am on 14 August 2016.

21.  Entry records show that the electronic access card issued to Mr Leung was the only card used to enter “storefriendly” between 1:49 am and 11:21 am on 14 August 2016.

22.  On 14 August 2016, Mr Leung sold 21 boxes of toys to a store owner for $21,980.  The store owner posted 2 of them online for sale.  The licensee recognized the 2 boxes of toys as his and informed the police.  The police recovered the 21 boxes from the store owner and they were confirmed to be part of the stolen property under Charge 5.  The unrecovered 6 boxes of toys were valued at $7,499.

ARREST AND CAUTION

23.  In the evening of 27 August 2016, patrolling police officers near Ma Tau Wai Road saw Mr Leung and recognized him to be the suspect burglar caught by CCTV of “storefriendly”.  Mr Leung was arrested.  Under caution, he admitted that he had stolen the 27 boxes of toys from E037 under Charge 5.

24.  During a cautioned interview on 13 September 2016, Mr Leung stated, inter alia, the following:-

(a) He had sold the 21 boxes of toys to a store owner representing to him that they belonged to his friend;

(b) He had spent the proceeds of more than $20,000 on his daily expenses;

(c) He threw away the remaining 6 boxes of toys because he could not find a buyer;

(d) He had hired a van to take away the 27 boxes of toys away from “storefriendly”;

(e) He acted alone; and

(f) The cheque that he used for registering for his room at “storefriendly” was found at a refuse station.

EVENTS OF 2017

25.  On 4 August 2017 at about 7:15 pm, plainclothes police officers investigating a series of ministorage burglaries saw Mr Leung enter a shopping centre in Yau Ma Tei.  When they revealed their police identity, Mr Leung tried to flee and put up a fierce struggle.  He was finally subdued and arrested.

26.  The two luggage bags carried by Mr Leung were searched and found to contain 23 toys.  In the vicinity, the officers found a friend of Mr Leung.  In the two luggage bags and one carton box carried by the friend were found 70 toy figures.

27.  During home search of Mr Leung’s residence at Battery Street, Yau Ma Tei, 2 more toys were found.

28.  All of the 95 toys were later identified and confirmed to be property stolen under Charge 10.

29.  Further investigation revealed that Mr Leung was involved in the following 10 burglaries.

Charge 7 – Burglary

30.  Upon being notified on or about 2 June 2017 that the ministorage room Room FO5041 in “SC Storage” of Fo Tan Industrial Centre which he rented had been prized open, the licensee went to check the room.  He found that 18 pieces of toys (worth $28,500) had been stolen.

31.  CCTV footage shows that Mr Leung, who was also an existing licensee, entered the premises alone at about 6 am on 1 June 2017 using an access card. He was seen climbing a ladder to look into different storerooms.  Later, he was seen cutting the padlock of Room FO5041 using a cable cutter before prizing open the door.  He was seen taking items from the room and placing them into a black piece of luggage and a white/red bag.  He was seen to leave the premises at 6:21 am.

32.  Mr Leung had rented two ministorage rooms himself from 30 May to 2 June 2017.

33.  Under caution, Mr Leung admitted that he had stolen the toys from Room FO5041.

Charge 10 – Burglary

34.  Upon being notified on or about 5 August 2017 that the ministorage room Room K3-57 in “Lucky Storage” of Career and Kenson Industrial Mansion, Kwun Tong, which he rented had been prized open, the licensee went back to check the room.  He found that about 100 pieces of toys (worth $50,000) had been stolen.

35.  CCTV footage shows Mr Leung entered the premises at about 5:40 am on 4 August 2017 and left carrying luggage bags after 7 am.

36.  Under caution, Mr Leung admitted that he had stolen toys from Room K3-57.

37.  As mentioned previously, 95 pieces of the stolen toys were later recovered from Mr Leung and his friend on 4 August 2017.

Charge 11 – Burglary together with “Sam”

38.  Upon being notified on or about 6 July 2017 that the ministorage room Room S13D60 in “Lucky Storage” of Chiu Tat Factory Building, San Po Kong, which he rented had been prized open, the licensee went back to check the room.  He found that 30 boxes of toys (worth $70,000) had been stolen.

39.  CCTV footage shows Mr Leung entered the premises at about 6:48 am on 5 July 2017 with another male.  They were seen to open the door of Room S13D60 and stole therein.  They were seen to leave together at about 6:51 am the same day.

40.  Under caution, Mr Leung admitted that he stole the toys in this burglary with a male known as “Sam” and they had shared the profits.

41.  Mr Leung’s right palm print was found somewhere in the premises.

Charge 14 – Burglary

42.  Upon being notified on 19 July 2017 that the ministorage room Room TY1-97 in “Lucky Storage” of Tsing Yi Industrial Centre Phase II which he rented had been prized open, the licensee went back to check the room.  He found that about 100 boxes of toys (worth $100,000) had been stolen.

43.  CCTV footage shows Mr Leung entered the premises on 19 July 2017 and prized open the door of Room TY1-97 and stole therein.

44.  Mr Leung’s left ring-fingerprint was found on the metal door frame of Room TY1-97.

45.  Under caution, Mr Leung admitted that he stole the toys from Room TY1-97.

Charge 15 – Burglary

46.  On 20 July 2017, the licensee of ministorage room Room TY1-33 in “Lucky Storage” of Tsing Yi Industrial Centre Phase II discovered that the room had been prized open and 30 boxes of toys (worth $40,000) had been stolen.

47.  CCTV footage shows Mr Leung entered the premises at about 8:47 am on 20 July 2017 and prized open the door of Room TY1-33 and stole therein.  He was seen leaving with full luggage bags after several minutes.

48.  Under caution, Mr Leung admitted that he committed this burglary.

49.  On 31 August 2017, the police recovered one of the stolen boxes from a toy shop in Mong Kok.  A staff member confirmed that he had purchased it from an unknown person for $300 in July 2017 and posted it online for resale at $550.

Charge 16 – Burglary

50.  On 27 July 2017, the licensee of ministorage rooms Rooms TY1-157 and TY1-158 in “Lucky Storage” of Tsing Yi Industrial Centre Phase II discovered that the doors of both rooms had been prized open and about 200 pieces of toys (worth $100,000) had been stolen.

51.  CCTV footage shows Mr Leung entered the premises and prized open the doors of both rooms at about 5:40 am on 26 July 2017 and stole therein.  Mr Leung was not a registered licensee of any storage rooms at “Lucky Storage” of Tsing Yi Industrial Centre Phase II.

52.  Mr Leung’s palm print was found on the metal wall near the door of Room TY1-158.

53.  Under caution, Mr Leung admitted that he committed this burglary.

Charge 17 – Burglary

54.  On 3 August 2017, the licensee of ministorage room Room TY1-77 in “Lucky Storage” of Tsing Yi Industrial Centre Phase II was notified that his room had been prized open.  It was discovered that some toys worth $100,000 had been stolen therein.

55.  CCTV footage shows Mr Leung entered the premises and prized open the door of Room TY1-77 and stole therein at about 5:20 am on 3 August 2017.

56.  Under caution, Mr Leung admitted that he committed this burglary.

Charge 18 – Burglary

57.  Upon being notified on 1 August 2017 that the ministorage room Room 3 in “Easy Storage” of Eldex Industrial Building, To Kwa Wan, had been prized open, the licensee went back to check the room.  He found that one box of fish maw, about 30 cans of Korean Ginseng, one box and cash of about $4,000 had been stolen therein.  The total value of the stolen items was about $64,000.

58.  CCTV footage shows Mr Leung entered the premises at about 8 am on 31 July 2017 and stole from Room 3 before leaving with a luggage bag at about 8:24 am the same day.

59.  Mr Leung’s left palm print was found on the inside of Room 3’s wooden door.

Charges 19 and 20 – Two burglaries

60.  On 11 June 2017, the licensee of the ministorage room Room L38 in “IN n OUT Storage” of Shing Dao Industrial Building, Aberdeen, checked that all the goods inside the room were in place and secured.  On 16 June 2017, he discovered that his room had been prized open and 35 boxes of toys (worth $35,500) had been stolen therein.  These 35 boxes of toys were later fully recovered.

61.  On 16 June 2017, the licensee of the ministorage rooms M56-57 and M70-71 in “IN n OUT Storage” discovered that the doors of both rooms had been prized open and one box of model, 3 vases, 3 plates for vases and 4 bags (worth a total of $107,000) had gone missing.

62.  It is a fact that Rooms M56-57 and M70-71 had been conjoined into one storage room.

63.  CCTV footages show Mr Leung entered “IN n OUT Storage” on 4 occasions between 10 and 12 June 2017.  On each occasion, he was seen breaking the padlocks of some storerooms and stealing therein.

64.  Under caution, Mr Leung admitted stealing from the rooms at “IN n OUT Storage”.

CRIMINAL RECORD

65.  The agreed criminal record shows Mr Leung to have 14 previous convictions 8 of which were for dishonesty-related offences.  Five of the previous convictions were for burglary which straddled between 2011 and 2013. His last conviction was in September 2016 for possession of a dangerous drug for which he was sentenced to detention in DATC.

ANTECEDENTS

66.  The agreed antecedents statement shows Mr Leung to be aged 43 (41 to 42 at the time of the offences); that he completed F5 education; that he had previously worked as a real estate agent and then as a fitness coach earning about $20,000 a month prior to his second arrest.  He was last discharged from DATC on 22 February 2017.  He claimed to be suffering from diabetes and claimed to be a drug addict.  He has a 16-year-old daughter.  Before the second arrest, he was living by himself.

67.  Defence told me that Mr Leung’s marriage is pending divorce.

MITIGATION

68.  Mr Lam Shun Chiu of counsel mitigated on behalf of Mr Leung.

69.  The following is a summary of the mitigation submissions.

70.  Mr Lam submitted a summary of the 12 charges to which Mr Leung has pleaded guilty.

71.  Mr Lam submits that Charges 5 and 6 are related, though the dates of the offences are different; that for all the burglary offences, very simple tools had been used to gain entry; that except for Charge 11, the modus operandi were all similar; that even for Charge 11, the accomplice’s role was no more than to help remove stolen goods.

72.  For Charge 6 – using a false instrument, Mr Lam submits that the instrument was intended for only one use – for carrying out the burglary subject of Charge 5.

73.  Mr Lam relies on the case of HKSAR v Choi Siu Wan (transliteration), HCMA 686/2003, a Chinese case on appeal against conviction, in which 10 months’ imprisonment was passed after trial on a defendant who used a false insurance receipt as proof of payment.  Mr Lam suggests this case shows the range of sentences imposed for this type of offence in the magistracy.

74.  Mr Lam submits that the most difficult aspect here is totality.  He submitted three cases on sentence namely, Secretary for Justice v Chan Tsz Lung, AR4/1998, HKSAR v Fan Kit Hung, CACC 62/2009 and HKSAR v Xie Guodong, CACC 384/2003.

75.  In Chan Tsz Lung, the respondent who had numerous convictions for offences involving dishonesty pleaded guilty to, inter alia, 15 charges of non-domestic burglary.  The Court of Appeal allowed the application and considered that the appropriate starting point for the burglaries should have been 5 years.

76.  In Fan Kit Hung, the applicant who had a previous conviction for robbery pleaded guilty to 13 charges of non-domestic burglary causing loss to the victims of cash of over $130,000 and clothing and other items.  The Court of Appeal commented that the applicant was no doubt a professional burglar but nonetheless allowed the appeal and reduced the global starting point to 6 years’ imprisonment.  The Court of Appeal further commented that an upper limit could not be placed on the totality of sentence for multiple burglary offences given the variation in circumstances and aggravating factors possible.

77.  In Xie Guohong, the applicant who was a two-way permit holder and who had previous convictions for immigration offences and drug possession and common assault offences pleaded guilty to 4 non-domestic burglaries involving stolen property to the value of over $470,000.  The Court of Appeal allowed the appeal and reduced the global starting point to 6 years’ imprisonment.

78.  Mr Lam submits the present facts differ from the three cited cases in that the number of counts of burglary here is less than those in Chan and Fan, but the total value of the stolen property involved is higher than all three cases.  Mr Lam submits that the monetary value of stolen property though a valid consideration is simply fortuitous and asks the court not to place too much emphasis on the value.

79.  Regarding personal background, Mr Leung’s problem appears to be related to his drug habit.  Even after his release from the DATC in February 2017, he still continued to spend a lot on drugs.  Mr Leung hopes to get rid of his drug habit after serving his substantial sentence on this occasion.

80.  Mr Lam submitted 4 mitigation letters (with English translation) written respectively by Mr Leung, Mr Leung’s girlfriend, the girlfriend’s daughter and Mr Leung’s elder brother.  They talk of how remorseful Mr Leung was, that he was expecting to be married to the girlfriend and turning a new leaf in life, that his brother (currently in the US) will help him find a job upon release.

81.  Lastly, Mr Lam suggests a global starting point of 6 years’ imprisonment.

SENTENCE

82.  I have considered the mitigation submissions made by and the mitigation letters submitted by Mr Lam Shun Chiu.

83.  The conventional sentence for burglary of non-domestic premises without aggravating or mitigating features is 2½ years’ imprisonment (see Attorney General v Lui Kam Chi [1993] 1 HKC 215, and HKSAR v Sim Ka Wing, CACC 450/2000).

84.  The maximum penalty for an offence of using a false instrument contrary to section 73 of the Crimes Ordinance, Cap 200, is 14 years’ imprisonment. There is no tariff sentence for this offence although imprisonment is invariably appropriate.

85.  Here, I have to sentence Mr Leung for 11 charges of Burglary and one charge of Using a false instrument.  In dealing with this large number of charges, I have to bear firmly in mind the principle of totality so as not to crush Mr Leung with an unbearable total sentence.

86.  The 12 offences spanned over a period of about one year between August 2016 and August 2017.  I bear in mind that the false instrument offence (Charge 6) was merely a means with which to commit the burglary subject of Charge 5.  I also bear in mind that the 2017 offences were not committed while Mr Leung was on bail for the 2016 offences because accordingly to the prosecution, Mr Leung simply refused to be put on bail after he was arrested the first time.

87.  In Fan Kit Hung, supra, at para 9, the Court of Appeal cited with approval the dicta of Yeung JA (as he then was) at para 15 of HKSAR v Cheng Wai Kit, CACC 338/2007, which is reproduced hereinbelow:-

“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 instruments or equipment; (2) the offence is committed by two or more people; (3) the offence targets 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 convictions of a similar nature, and (6) the offender commits multiple offences.”

88.  I bear in mind that there is an aggravating feature in Charge 11 in that it was committed in concert with a male known as “Sam”.

89.  I also bear in mind the total unrecovered stolen goods amounted to more than $600,000 in value.

90.  I also cannot ignore the aggravating factor (which Mr Lam acknowledged) that Mr Leung has a bad conviction record for dishonesty-related offences.

91.  Judging from the multiple offences of similar modus operandi in this case, Mr Leung can rightly be described as a serial burglar if not also a professional burglar for which a deterrent sentence is called for: see Fan Kit Hung, supra, at para 7.

92.  Mr Leung pleaded guilty in time so is entitled to a 1/3 discount in the sentences.  I cannot find any other mitigating factors of sufficient weight to justify a further discount.

93.  Taking all relevant factors into consideration, I consider that a global starting point of 6 years 3 months’ imprisonment is fully justified.  I shall allocate the sentences in the following way.

94.  For Charge 6 – Using a false instrument, I shall adopt a starting point of 12 months’ imprisonment.  After discount of 1/3, the sentence is 8 months.

95.  For Charge 5, I shall adopt a starting point of 2 years 9 month’ imprisonment.  After discount of 1/3, the sentence is 22 months.

96.  For Charge 7, I shall adopt a starting point of 2 years 9 months’ imprisonment.  After discount of 1/3, the sentence is 22 months.

97.  For Charge 10, I shall adopt a starting point of 2 years 9 months’ imprisonment.  After discount of 1/3, the sentence is 22 months.

98.  For Charge 11 – the burglary with “Sam”, I shall adopt a starting point of 3 years’ imprisonment.  After discount of 1/3, the sentence is 24 months.

99.  For Charge 14, I shall adopt a starting point of 2 years 9 months’ imprisonment.  After discount of 1/3, the sentence is 22 months.

100.  For Charge 15, I shall adopt a starting point of 2 years 9 months’ imprisonment.  After discount of 1/3, the sentence is 22 months.

101.  For Charge 16, I shall adopt a starting point of 2 years 9 months’ imprisonment.  After discount of 1/3, the sentence is 22 months.

102.  For Charge 17, I shall adopt a starting point of 2 years 9 months’ imprisonment.  After discount of 1/3, the sentence is 22 months.

103.  For Charge 18, I shall adopt a starting point of 2 years 9 months’ imprisonment.  After discount of 1/3, the sentence is 22 months.

104.  For Charge 19, I shall adopt a starting point of 2 years 9 months’ imprisonment.  After discount of 1/3, the sentence is 22 months.

105.  For Charge 20, I shall adopt a starting point of 2 years 9 months’ imprisonment.  After discount of 1/3, the sentence is 22 months.

106.  For the Charges 5 to 6 pair, I order that 3 months of the sentence for Charge 6 is to run consecutively to the sentence for Charge 5, making an aggregate of 25 months for that pair.

107.  For the 2017 charges, I order that one month of each of the sentences for Charges 7, 10, 14, 15, 16, 17, 18, 19 and 20 to run consecutively to the sentence for Charge 11, making an aggregate of 33 months for the 2017 charges.

[Mr Leung, please stand]

108.  I further order that 17 months of the aggregate sentence for the Charges 5 and 6 pair to run consecutively to the aggregate sentence for the 2017 charges making a total sentence of 50 months’ imprisonment which is 2/3 of 6 years and 3 months.