HKSAR v. LEUNG CHUN HUNG

DCCC 807/2016

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 807 OF 2016

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REASONS FOR SENTENCE

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1.  The Defendant has pleaded guilty to one count of burglary, contrary to Sections 11(1)(b) and (4) of the Theft Ordinance, Cap. 210.

Facts

2.  The burgled premises herein are at 8^th floor, No. 254 Ki Lung Street, Sham Shui Po, Kowloon.  These are domestic premises.  The registered owner of the premises is the mother of PW1, Law Ching-wa. Due to old age, she had moved out of the premises in 2008. Thereafter, PW1 stored some furniture and other miscellaneous items in the premises, and would occasionally go the premises to inspect the premises.

3.  On 17 April, 2016. PW1 went to the premises and discovered some prizing marks on the iron gate. She also noticed that the lock was damaged. The wooden door was slightly opened and the lock had been removed. She found signs of ransacking and a lot of rubbish inside the premises.  Upon checking, she found 2 chairs, an air conditioner and a television as listed in the particulars of the charge were missing from the premises.   A report was made to the police.

4.  During the investigation, the police found a savings account passbook in the name of “Leung Chun-wah”, an identity card in the name of “Leung Chun-wah”, one can of beverage, drug paraphernalia and one glass tube inside the premises.  PW1 confirmed that these items did not belong to her. Fingerprints were lifted from a pink mirror and glass container on a wooden table in the premises and these were found to match the fingerprints of the Defendant.  On 7 July, 2016, the Defendant was intercepted for an identity card check and subsequently arrested for the present offence.  Under caution, he admitted that he had stayed in the premises for about one month.  He also admitted having stolen some properties from the premises as he was unemployed and had no place to live.

5.  In a subsequent video-recorded interview under caution, the Defendant admitted having broken into premises and staying there since March 2016 as he was jobless and had nowhere to live.  He found that no one lived in the premises. He stole 2 chairs, an air conditioner and a television that he later sold for about $600-700. The identity card the police seized belonged to his elder brother and he had borrowed it from his elder brother. The savings passbook also belonged to his elder brother and had been given to him by his elder brother for safekeeping.

6.  By his plea, the Defendant has admitted that he entered the premises as a trespasser and stole the items as set out in the particulars of the charge.  I was satisfied beyond all reasonable doubt that the facts supported the charge and  accordingly I convicted the Defendant on the charge.

7.  Ms. Khubchandani has also submitted a photograph album of 24 photos, which are also admitted by the Defendant. These depict the burgled premises in question.  Photos 4 to 6 depict the damages to the iron gate and wooden door. Ms. Khubchandani informs the Court that she has been informed by PW1 that the cost to repair the damage is $500. This has been accepted by the Defence.

8.  I am also informed by Ms. Khubchandani that she was informed by PW1 that the 2 chairs that were stolen were ‘old’ – antique would be a better description I think – and worth about $20,000. The stolen air conditioner and television were each worth $5,000. So the total value of the stolen property is $30,000. This has been accepted by the Defence.

Previous Convictions

9.  The Defendant’s criminal record dates back to 1993 when he would have been 18 years old. He has 19 previous convictions in 17 court appearances, including 4 for theft or attempted theft, and 3 for conspiracy to defraud, as well as convictions for possession and trafficking in dangerous drugs. His most recent conviction was for a dishonesty related offence, namely theft, and it is recorded as a shoplifting offence of theft, on 17/2/2015 when he was sentenced to 2 months’ imprisonment. 

Mitigation

10.  The Antecedent Statement was read into the record by the Prosecution – no issue was taken on the contents.  This disclosed that the Defendant was born in Hong Kong and aged 41 years and educated in Hong Kong. He was single, and lived with his mother and was unemployed at the time of his arrest.  He was last released from prison on 19 March, 2015. He had been addicted to heroin since 1992.

11.  Mr. Yuen for the Defendant submitted that the Defendant’s greatest mitigation was his plea of guilty, thus saving the Court’s time.  He submitted that the Defendant was born in Hong Kong and educated in Hong Kong until Form 3.  When not in prison, he had worked as a casual worker – as a warehouse keeper, delivery worker and air condition apprentice.  He submitted that the Defendant was very remorseful and apologized to the property and flat owners for what he had done. He also submitted a letter in mitigation from the Defendant, and sought leniency on behalf of the Defendant.  He also submitted the case of HKSAR v. Wai Tung, also known as Lee Wai, DCCC 1001/2010, a case involving a burglary of domestic premises, wherein the Court said that the normal starting point for a burglary of domestic premises was 3 years’ imprisonment.

Sentencing Considerations

12.  There is a well settled sentencing guideline for burglary of domestic premises. According to the guideline, the 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.

13.  In the present case, I find there were no aggravating features in the commission of the offence in that the Defendant committed the offence alone. The premises had been vacant for a long time and there was little possibility of confrontation with any occupier. No one had been alarmed or disturbed, and no violence had been used.  However, the value of the stolen property cannot be described as small. There was damage caused to gain entry into the premises. The premises were ransacked, as can been from the photos submitted.

14.  Mr. Yuen has mitigated on behalf of the Defendant today. I have considered all that he has said, as well as the contents of the Defendant’s letter and the case submitted by Mr. Yuen.  Save for the Defendant’s plea of guilty, there is really little mitigation of weight before me. That he offended because of his drug addiction in my view is not a matter to which weight can be given. Nor can weight be given to the fact that he has now found God and realized his own wrongdoings whilst in custody for the present offence.

15.  The Defendant is of full age.  He is not a first offender, as his criminal record shows. He is a repeat offender.  The Defendant also has scant regard for the law, and his latest sentence did not deter him from committing the present offence.  I find his repeated offending an aggravating factor.

16.  An immediate custodial sentence is the only appropriate sentence in the circumstances of the offence and the Defendant.

17.  I have borne in mind all that has been urged upon me on behalf of the Defendant as well as the sentencing guidelines. I do find that there are aggravating factors, but I also note that this is the Defendant’s first offence of burglary. I shall take as a starting point 3 years’ (36 months) imprisonment, discount this by one-third to reflect the Defendant’s plea, which in my view is the only mitigation of weight before me, and sentence the Defendant to 2 years’ (24 months’) imprisonment.  I can see no other factors to warrant any further discount.