HKSAR v. WAN WAI LUN AND OTHERS

DCCC 151/2013

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 151 OF 2013

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REASONS FOR SENTENCE

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D1 to D3 pleaded guilty to a charge of "Burglary" (Charge 1); D2 pleaded guilty to charge of "Assaulting a police officer in the due execution of his duty" (Charge 2), but pleaded not guilty to a charge of "Theft" (Charge 3); and D3 pleaded guilty of a charge of "Dangerous Driving" (Charge 4).

2.  The prosecution applied to leave Charge 3 in the court file.  I granted the application and ordered Charge 3 not to be proceeded against D2 without leave of court.

Summary of Facts

3.  About 11:40 a.m. on 12 November 2012, police officers saw D1 to D3 coming down Staircase No.1 on the Ground Floor of Sunningdale Garden situated at No.8 Chi Cheong Road, Sheung Shui.

4.  D1 was carrying a black rucksack.  D2 was pushing a hard object wrapped in a bed sheet (later discovered to be a metal safe) down the staircase.  At the same time, D3 was walking towards a private car (PY 755) parked nearby.  He then drove that car onto the pavement to facilitate D1 and D2's boarding with the heavy safe.

5.  When the officers approached D1 to D3, they fled in different directions.

Arrest of D1

6.  The officers apprehended D1, but he put up a brief struggle.  He was subdued and arrested by PC 9461.  The Police searched his rucksack and found inside 2 metal crowbars as well as the stolen items particularized in Charge 1 (except the safe and some miscellaneous documents). A sales receipt in relation to the purchase of 2 crowbars, 2 pairs of labour gloves and 2 face masks was also found on D1.

Arrest of D2

7.  Upon seeing the police officers, D2 fled towards Staircase No.1 on the Ground Floor of Sunningdale Garden.  Sgt. 47546 (PW3) gave chase and intercepted him at the staircase landing.  D2 resisted and put up a struggle with PW3.  D2 punched him once on his head.  As a result, PW3 drew his police baton to prevent D2 from further assaulting him.  He also warned D2 not to move.

8.  D2 ignored PW3's order and attempted to climb over the wall of the staircase.  PW3 grabbed D2 and they had another struggle.  During the struggle, PW3 felt his pistol being tugged.  He immediately dropped his police baton in order to protect his pistol with both hands.  At that moment, D2 picked up the police baton and tried to use it to hit PW3.  PW3 drew his pistol, pointed it at D2 and ordered him to stop.

9.  D2 ignored the order and climbed over the wall of Staircase No.1.  He jumped into the nearby public carpark.  Sgt. 34397 arrived and assisted in the pursuit of D2.  D2 was running with PW3's police baton in his hand and came across PC 5022 (PW11).  PW11 drew his pistol, pointed it at D2 and ordered him to stop.  D2 continued to flee.  PW11 and other officers gave chase.

10.  D2 was eventually apprehended by police officers at the pavement outside the entrance of the carpark.  PW11 arrested D2 and recovered from him PW3's police baton.

11.  Upon search, a glove was found on D2.  It was similar to the 3 gloves found on the ground near Staircase No.1 where D1 was arrested.

12.  During his struggle with D2, PW3 sustained minor injuries to his left wrist, lower lip and 2 right fingers.

Arrest of D3

13.  Whilst D1 and D2 were fleeing towards different directions, D3, who was on board of the private car, attempted to drive away. He first drove along the pavement for about 80 metres and then moved onto Jockey Club Road.  He was pursued by 2 police vehicles.

14.  Despite being ordered by the Police, D3 failed to stop.  Upon reaching the junction between Jockey Club Road and Lung Sum Avenue, D3 tried to drive through the narrow space between the vehicles which stopped for the red light.  In the course of doing so, his car collided with a light goods vehicles (PL 1612), a KMB bus (NU 9285) and the 2 police vehicles which attempted to cordon it.  D3's car eventually came to a halt and D3 was arrested.

Police Investigation

15.  Under caution, D1 to D3 each admitted that they burgled a flat situated on 19^th Floor, Block 1, Sunningdale Garden (which is the premises stated in Charge 1) in the morning on 12 November 2012.

16.  Madam CHAN (PW1) resides at the premises burgled by D1 to D3.  She confirmed that the stolen properties recovered from D1 belong to her and/or her family members.  The total value of those items is approximately $220,000.

Mitigation

D1

17.  D1 is now 27 and single.  He has 5 conviction records which involve a total of 7 burglary-related offences.  His last conviction involves 2 burglary-related offences (DCCC 864/2010) and he was sentenced to 2 years and 8 months in January 2011.  He was released in March 2012.

18.  D1's counsel Mr. YIP informed the court that D1 has encountered many unfortunate events in life and was influenced by bad peers.  D1's father deserted his family when D1 was only a few years old and did not maintain any contact since.  D1 was raised by his late mother, who had psychiatric illness and committed suicide when D1 was 12.  Since then, D1 was cared for by the Social Welfare Department.

19.  Mr. YIP submitted that D1 has decided to turn a new leaf upon release from prison in March 2012.  He became a car repair apprentice in a friend's garage earning $7,000 per month.  He also met his present girlfriend and they have a stable relationship.  Unfortunately, the mother of D1's girlfriend was in heavy gambling debt ($50,000).  D1 foolishly committed the present offence.

D2

20.  D2 is now 33 and married with 2 children (aged 3 and 8).  He has 5 conviction records which involve an offence of "Theft" and an offence of "Assault occasioning to actual bodily harm".

21.  D2's counsel Ms. KU informed the court that D2 used to run his own trading business.  Unfortunately, the business failed and he lost all his money.  Ms. KU submitted that D2 is not a professional burglar.  When he was caught by the Police, he was in a panic.  He did not mean to hurt anyone; he just wanted to scare the officers and to stop them from chasing him.

D3

22.  D3 is now 33 and single.  He has 12 conviction records which involve a total of 8 burglary-related offences.  His last conviction involves 2 burglary-related offences (also DCCC 864/2010) and he was sentenced to 2 years and 8 months in January 2011.  He was released in March 2012.

23.  D3's counsel Mr. TANG informed the court that similar to D1, D3 also has an unfortunate childhood.  D3 has never met his father, and his mother passed away when D3 was 14.  He was on his own ever since.  Mr. TANG submitted that D3 met his girlfriend a few years ago.  If not for the present case, they had planned to get married this year.  In fact, they had planned to start a family last May and D3 intended to become a taxi driver.  D3 missed his taxi driving test in June 2012 because he was remanded in custody for another case, the charge in which was later withdrawn. 

Sentence

24.  The contents of all mitigation documents placed before me are duly noted.  Time after time, the court has expressed in very clear terms that being in financial difficulty (however serious) is no mitigating factor for committing a crime.

25.  The normal starting point for domestic burglary is 3 years' imprisonment.  It is most fortunate that all the stolen properties were recovered and that PW1 suffered no loss except a broken door and a damaged safe.  Mr. YIP informed me this afternoon that PW1 has received compensation in full for repairing the door and lock of her home.  Credit should be given to all 3 defendants as they each contributed in equal shares.

Charge 1 (against D1 to D3)

26.  D1 and D3 are clearly repeated offenders of burglary.  They re-offended in just 8 months after release from prison.  I must adjust their starting point upward.  For D1 and D3, I adopt a starting point of 45 months' imprisonment; and for D2, 3 years' imprisonment.  The usual one-third discount is given for their guilty pleas, reducing the sentence to 30 months and 2 years respectively.  To reflect the compensation they made to PW1, I will grant a further reduction of 1 month to each of them.  For Charge 1, I sentence D1 and D3 each to 29 months' imprisonment; and D2, 23 months.

Charge 2 (against D2)

27.  D2 assaulted PW3, a police officer who was pursuing him.  It is a serious matter.  It is most fortunate that PW3 sustained only minor injuries and that he was able to dodge D2's attack using the police baton. I adopt a starting point of 6 months' imprisonment.  A one-third discount is given for his guilty plea, reducing the sentence to 4 months.  Apart from this, I see no other mitigating factors which warrant any further discount.

28.  In my view, Charges 1 and 2 are separate and distinct.  Charge 2 could have been completely avoided had D2 controlled and surrendered himself.  Notwithstanding the totality principle, I consider it just and appropriate to order the 2 sentences to be served consecutively.[1]  In other words, the total prison term for D2 is 27 months.

Charge 4 (against D3)

29.  D3's driving manner was simply appalling.  It is obvious that he drove in such a dangerous way in order to avoid being caught by the Police.  Even with no or very minor previous traffic convictions, an immediate custodial sentence is required.  I have considered the Court of Appeal's decision in SJ v KO Wai Kit, Paul [2001] 3 HKLRD 751.

30.  Although D3 drove dangerously, disobeyed Police commands and disregarded the safety of other road users, I do not consider Charge 4 falls within the category of the worst of its kind.  Bearing in mind the maximum prison term for this offence is 3 years, I adopt a starting point of 18 months' imprisonment.  A one-third discount is given for the guilty plea, reducing the sentence to 12 months.  Likewise, I see no other mitigating factors which warrant any further discount.  The sentence for Charge 4 is therefore 12 months' imprisonment.

31.  In my view, Charges 1 and 4 are separate and distinct.  Charge 4 could have been completely avoided had D3 obeyed the Police command to stop his car.  In principle, the sentences for both charges should be served consecutively.  However, having considered the totality principle, I order 6 months in Charge 4 to be served concurrently with Charge 1, arriving at a total term of 35 months' imprisonment for both charges.

32.  For Charge 4, a disqualification order is inevitable. The Court of Appeal in SJ v HUNG Ling Kwok [2010] 4 HKLRD 365 commented that it serves no purpose for the court to make a disqualification order which coincides with the prison term to be served by a defendant.  In such case, the defendant would be able to drive again upon release.  On this basis, I make a disqualification order of 4 years[2] against D3.

33.  Pursuant to section 72A of the Road Traffic Ordinance (Cap.374), I also order D3 to attend and complete a Driving Improvement Course.  He shall do so during the last 3 months of his disqualification period.