HKSAR v. HUI HUNG SHING

DCCC 744/2015

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 744 OF 2015

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REASONS FOR SENTENCE

1.  Hui Hung Shing you have pleaded guilty to three charges of burglary, contrary to section 11 of the Theft Ordinance.[1]

Charge 1

2.  Full details of the offences are set out in the facts admitted by you today.  In summary between 6:00 p.m. on 14 May and 9:00 a.m. on 15 May this year you burgled a store in Sheung Wan.  At the time the store was under renovation, with the door locked.  The lock had been broken and cables worth $2000 stolen.   You admitted the burglary when interviewed by the police in July.    

Charges 2 & 3

3.  In the early hours of 22 June you burgled a restaurant in Sheung Wan.  A tip box containing $3000 was stolen. 

4.  In the early hours of 4 July CCTV captured you burgling the same restaurant.  You ransacked the restaurant and prized open three drawers.  You stole a cash box; $495 cash; an iPod; two bottles of alcohol; eleven keys and two plastic cards.

5.  The police arrested you on 6 July.  Under caution you admitted burgling the restaurant on the 4 July and helped the police recover some of the stolen items you had buried in a rear lane. 

6.  In passing sentence I have carefully considered everything said on your behalf by Mr Chan together with your mitigation letter.  I take into account your wife is seriously ill and that you committed the offences to obtain money to buy herbal medicine for your wife. 

7.  The correct starting point for a single burglary of non-domestic premises committed by a first offender of full age where there are no aggravating or mitigating features is 2 years and 6 months imprisonment.

8.  Lower starting points have been taken where premises are under renovation. Photographs have been submitted showing that the store was not occupied during renovation.  On the other hand having broken the lock to enter the store the burglary cannot be described as opportunistic.  In the circumstances I am satisfied a starting point of 2 years imprisonment is appropriate for charge 1. 

9.  You have appeared in court on 13 occasions amassing a total of 20 convictions, 16 of which are for offences of dishonesty with five for burglary.  You last appeared in court in January 2009 when I sentenced you to a total of 3 years imprisonment for offences of robbery and burglary.   You were released from prison on the 24 January 2011.  You have therefore remained out of trouble for over 4 years.  In the circumstances I do not increase your sentence by reason of your persistent offending in offences of dishonesty.

10.  Giving you full credit for your pleas of guilty reduces the sentence on charge 1 to 1 year and 4 months imprisonment and on charges 2 & 3 to 1 year and 8 months imprisonment.   

11.  In respect of charge 1 Ms Lam confirms that without your confession there was no other evidence that you were the burglar.  In the circumstances I further reduce the sentence on charge 1 to 1 year imprisonment.[2]

Ill health

12.  I am sympathetic that your wife is seriously ill and may not have long to live. You have expressed that you do not wish the court to call for a background report to learn more about your wife’s health condition.  Generally in cases where the ill health of a close relative is sought to be relied on, the court has not allowed this factor to be taken into account to further reduce the sentence.[3] This is not a case where your wife has fallen ill after your arrest.  You committed the offences in full knowledge of your wife’s declining health.  I am satisfied no further reduction in sentence should be given by reason of your wife’s ill health.  I will however bear this in mind when considering totality of sentence to be served by you for the three burglaries. 

Totality

13.  Where offences are committed in different premises against different victims on different dates, consecutive sentences should be imposed, subject to the totality principle.[4] As noted earlier charges 2 & 3 are burglary of the same restaurant but on different dates.  Taking into account all the circumstances of the three burglaries, I am satisfied that a total sentence of 2 years and 4 months imprisonment is appropriate, which I am satisfied properly reflects your criminality on the three charges.

Sentence

14.  You are convicted and sentenced as follows:

Charges 2 & 3 – 1 year and 8 months imprisonment concurrent on each charge.

Charge 1 – 1 year imprisonment with 8 months consecutive and 4 months concurrent to charges 2 & 3.

Total sentence is 2 years and 4 months imprisonment.

[1] Cap 210

[2] See HKSAR v Tsang Kai On [2011] 2 HKLRD 340.

[3] See for example HKSAR v Gurung HemantCACC 332/2005.

[4] See Attorney General v Lui Kam Chi [1993] 1 HKC 215 and HKSAR v Leung Ting Fung & another [2015] 1 HKC 290.