HKSAR v. LEONG CHEE KEUNG

DCCC 537/2013

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 537 OF 2013

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REASONS FOR SENTENCE

1.  Leong Chee Keung you have pleaded guilty to two charges of burglary of Room No. 4 on the mezzanine floor of No. 37 Ho Pui Street in Tsuen Wan, contrary to section 11 of the Theft Ordinance, Chapter 210.

2.  Madam Xue Xiangying lived at Room No. 4 whilst you lived at Room No. 3.  In summary around 11 a.m. on the 22 March this year Madam Xue left home locking the door and securing the padlock to her room.  When returning home the same afternoon Madam Xue discovered the door knob had been broken and the door latch loosened.  At the same time Madam Xue looked into Room 3 and saw you holding a packet of preserved sausage which she recognised as the one she had put in her fridge.

3.  Madam Xue called the police.  Under caution you admitted because you were hungry you used a screwdriver to break open the lock of Room No. 4 and took out from the fridge a packet of fish balls and the preserved sausage.  You further admitted that two days earlier you had also used a screwdriver to break into Room No. 4 when you stole $50 which you spent on cigarettes.     

4.  In passing sentence I have carefully considered everything said on your behalf by Mr Yip, including that you broke into Madam Xue’s room because you were hungry and had no money.  I take into account you have no previous convictions.  I have also considered the content of the background report which shows you to have been a street sleeper for much of the past three years during which time you also rendered help to other homeless people.

5.  The correct starting point for a single burglary of domestic premises committed by a first offender of full age where there are no aggravating or mitigating features is 3 years imprisonment (see Attorney General v Lui Kam Chi [1993] 1 HKC 215).

6.  Lower starting points have however been taken in burglaries sometimes described as opportunistic burglaries where items of food have been taken.  In deciding whether 3 years is the correct starting point I have considered two cases I referred to Mr Yip at the last hearing, in which there are some similarities with the facts of the present case. 

7.  In HKSAR v Law Tin Yam CACC 258/2010 the defendant stole a packet of cigarettes from an adjoining cubicle when the occupant was away on holiday and had left the cubicle unlocked.  The Court of Appeal said the appropriate starting point was one of 15 months imprisonment.

8.  Although in the first burglary $50 was stolen which was used to buy a packet of cigarettes this case can be distinguished on the basis that a screw driver was used to break into the room of Madam Xue, although it appears that whilst Madam Xue was aware $50 was missing she was not aware her room had been broken into.

9.  In HKSAR v Kwok Wing Kam CACC 394/2010 the same starting point of 15 months imprisonment was said to be appropriate where the defendant stole a packet of lemon tea from the refrigerator having used a plastic card to open the door which was not securely closed.  Again this case can be distinguished Madam Xue having secured the door of her room with a padlock. 

10.  Taking into account all the circumstances including that you have no previous convictions; that a screwdriver was used to gain entry to Madam Xue’s room and that you only stole $50 the first time and items of food the second time, I am satisfied the appropriate starting point for each burglary is also one of 15 months imprisonment.  Giving you full credit for your pleas of guilty reduces the sentence on each burglary to 10 months imprisonment.

Totality

11.  Mr Yip submits that as the same premises were burgled concurrent sentences are appropriate.  The burglaries were however committed on two different days for which consecutive sentences are appropriate.  Taking into account the prosecution have confirmed that without your confession they would not have been able to prove the first burglary,I am satisfied that only 2 months of the sentence on charge 1 should be ordered to be served consecutively to the sentence on charge 2 making a total sentence to be served by you of 12 months imprisonment, which I am satisfied properly reflects your criminality on the two charges (see HKSAR v Ma Ming  CACC 23/2012).

Sentence

12.  You are convicted and sentenced as follows:

CHARGE 1 – 10 MONTHS IMPRISONMENT; AND

CHARGE 2 – 10 MONTHS IMPRISONMENT

2 MONTHS OF THE SENTENCE ON CHARGE 1 IS ORDERED TO BE SERVED CONSECUTIVE AND 8 MONTHS CONCURRENT TO THE SENTENCE ON CHARGE 2;

THE TOTAL SENTENCE TO BE SERVED BY YOU IS 12 MONTHS IMPRISONMENT.