HKSAR v. LEUNG PUI (also known as LEUNG WA-FAI) AND OTHERS

DCCC 284 & 483/2020

(Consolidated)

[2021] HKDC 218

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NOS 284 AND 483 OF 2020

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Reasons for Sentence

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1.  The defendants have pleaded guilty to the following charges. Charge 1, the 1st and 2nd defendant pleaded guilty to an attempted burglary. The 2nd defendant also pleaded guilty to the 2nd and 3rd charges involving forgery of a document. The 2nd and 3rd defendants pleaded guilty to a further burglary charge. Finally, the 3rd defendant pleaded guilty to a single charge of failure to produce proof of identity on demand.

2.  The whole indictment deals with an attempted burglary and a burglary, and the consequence charges and involvement of the defendants.

3.  The 1st charge involves the attempted burglary and concerns the 1st and 2nd defendants.  It occurred at a restaurant in Yuen Long in the early hours of 28 December 2019.  The restaurant itself had a roller shutter and a glass door and they were locked on the evening, early morning of 28 December 2019.

4.  An off-duty police officer was alerted to the presence of three men in the vicinity of a car nearby to the restaurant.  This was at around about 3 am in the morning. 

5.  The 1st and 2nd defendants were also seen somewhat later standing outside the restaurant together with a third male.  The 2nd defendant appeared to do something in relation to the glass door of the restaurant while the 1st defendant was standing near the car looking around, appearing to be a lookout.

6.  Eventually, police moved to intercept the three men, including the 1st and 2nd defendants.  The 1st defendant was intercepted, and the 2nd defendant was able to escape. 

7.  There was an attempt to enter the premises.  The damage to the property was found by an inspection.  The roller shutter of the restaurant was raised.  The control panel of the roller shutter was prized open and the padlock of the glass door was placed on the ground.

8.  The 2nd defendant’s wallet was found nearby, together with a crowbar, a torch and a mask. 

9.  CCTV cameras showed the progress of the burglary and upon investigation it was found in relation to the car that the registration mark had been swapped, and in relation not that, the 2nd defendant has pleaded guilty to the 2nd and 3rd charges.

10.  The 1st defendant was later to admit he had intended to burgle the restaurant with two other men.  The concept was to prize open the doors of the restaurant with a crowbar.  He had acted as the lookout.

11.  In a later interview the 2nd defendant also made admissions in relation to that attempt to burgle, including admitting switching the number plate of the vehicle that was used in the course of the burglary.

12.  The next charge, Charge 4, relates to the burglary charge.  This burglary occurred at a storeroom in Kwun Tong which was rented by the victim.  It was secured on 14 December 2019 at about 10 o’clock in the evening. 

13.  On 16 December, the storeroom was found to have been ransacked and the door pried open.  In total around about $180,000 worth of items had gone missing from the room.  The items can be seen particularised in the charge, but they include luggage, a Rolex watch and bottles of wine and a ring, and other miscellaneous items, and the CCTV camera of the premises shows both the 2nd and 3rd defendants present at the time of the burglary.

14.  The 2nd defendant was later to admit his involvement in that burglary together with the 3rd defendant, and the 3rd defendant also made some admissions in relation to the burglary and he pleads guilty to his involvement in it today.

15.  The 3rd defendant was also unable to prove his identity on demand at the police station in Tseung Kwan O, and that comprises the 5th charge against him. 

16.  As far as the backgrounds of the defendants is concerned, the 1st defendant is a 61-years-old man.  He has a number of previous convictions; 11 appearances in court in total involving drugs, burglary and robbery.  This defendant was convicted of burglaries in 2007 receiving 2 years’ imprisonment.  In 2010 receiving 20 months’ imprisonment, and in 2012, an attempted burglary receiving 24 months’ imprisonment.

17.  The 2nd defendant is aged 35.  He has a total of 12 previous appearances in court mainly related to possession of drugs or trafficking in drugs.  He has no similar convictions.  He does have one offence relating to dishonesty, but that was some 14 years ago. 

18.  The 3rd defendant is now aged 32.  He has a total of six previous appearances in court.  By way of custody, he has been sentenced to a drug addiction treatment centre.  He has no similar convictions. 

19.  The defendants asked for leniency in the court. The 1st defendant admits his role and prays in aid that, in fact, this is an attempted burglary, and no items were, in fact, lost by the restaurant. 

20.  The 2nd defendant similarly asks for leniency and I note that he was discharged from prison in 2019.  He says he was unable to find employment and committed the offences out of financial difficulty.  He was also recently married in 2019. 

21.  As far as the 3rd defendant is concerned, he again asks for leniency.  He prays in aid he has no similar criminal convictions.  He asks for leniency and shows remorse in his submissions of mitigation.

22.  The major charges faced by the defendants relate to the burglary and this is the offence that is covered by guideline sentences.  As far as the other offences faced by the 2nd and 3rd defendants, the sentences in those charges are at large.

23.  Both the burglary and the attempted burglary charges relate to a non-domestic premises.  The starting point for sentence for the burglary at non-domestic premises is 30 months’ imprisonment by a person of clear record after a plea of not guilty. 

24.  The court can enhance this starting point having regard to aggravating factors that exist in the offence.  One aggravating factor common to both the attempted burglary and the offence of burglary in Charge 4 is they are committed by two or more people. 

25.  In relation to the 4th charge, given the value of the goods at $180,000, it could be said that that burglary involves an offence involving substantial properties.

26.  Finally, a sentence can be enhanced if the offender has previous convictions.  This is relevant to the 1st defendant who has three similar convictions for burglary. 

27.  Bearing in mind this approach to sentence, I shall impose the following sentences by way of calculation on each defendant as follows. 

28.  I turn, firstly, to the 1st defendant.  He faces a single charge of attempted burglary in Charge 1.  I note in that burglary that no items were, in fact, taken.  However, as far as the 1st defendant is concerned there are two aggravating factors in relation to his participation in that offence. 

29.  Firstly, that the offence is committed by two or more people and, secondly, that the 1st defendant has relevant previous convictions.  Those two factors will lead to a 6-month enhancement of the sentence of 30 months, starting with a 30 months’ imprisonment, to a starting point of 36 months’ imprisonment.  After the defendant’s plea of guilty is taken into account, that will leave a final sentence of 24 months’ imprisonment.

30.  The 2nd defendant faces the same charge.  As far as he is concerned there is one aggravating factor.  That is the offence being committed by two or more people leading to a starting point of 33 months’ imprisonment.  After deduction of plea of guilty, the defendant’s plea of guilty, that will lead to a sentence of 22 months for Charge 1. 

31.  Charges 2 and 3 faced by the 2nd defendant relate to the swapping of the licence plates.  I will take a starting point of 3 months’ imprisonment in relation to each of Charges 2 and 3 and reduce that to 2 months’ imprisonment for the defendant’s plea of guilty.  I note for the present purposes those offences would appear to be part and parcel of the 1st offence.  I shall order them to be served concurrently in relation to the overall totality which I will explain later.

32.  In relation to Charge 4, both the 2nd and 3rd defendants face that charge.  It is a non-domestic premises.  The provisional starting point would be one of 30 months’ imprisonment for both defendants.  Substantial properties are involved, and the offence is committed by two or more people.  There are two aggravating factors leading to a starting point for sentence of 36 months’ imprisonment.  After deduction for the defendants’ pleas of guilty are concerned, that leads to a sentence of 24 months’ imprisonment for both the 2nd and 3rd defendants on Charge 4.

33.  The 3rd defendant also faces Charge 5, failure to produce his proof of identity.  I will order a sentence of 7 days’ imprisonment on that charge.  That will be served concurrently to Charge 4 by the 3rd defendant.

34.  So the final sentences will be as follows. 

35.  The 1st defendant will serve 24 months’ imprisonment.

36.  The 2nd defendant, I have already indicated that Charges 1, 2 and 3 will be served concurrently.  I will order that 10 months of Charge 4 be served consecutively to Charges 1 to 3, leaving an overall total sentence of 32 months’ imprisonment.

37.  The 3rd defendant, I have already indicated both his sentences will be served concurrently leading to a sentence of 24 months’ imprisonment for the 3rd defendant.

(Proceedings from 3.33 pm to 3.35 pm not required.)

Court adjourns - 3.35 pm

Court resumes - 3.37 pm

Defendants present. Appearances as before.

(Proceedings from 3.37 pm to 3.38 pm not required.)

38.  I will set aside the sentence on Charge 5.  I will order a fine of $300 on Charge 5.