HKSAR v. LEUNG SAI MAN

DCCC1161/2011

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 1161 OF 2011

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Reasons for Sentence

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1.  The defendant enters a plea of guilty to -

(a) one charge of burglary, laid against him under section 11(1)(b) and (4) of the Theft Ordinance, Cap.210;

(b) one charge of theft, preferred pursuant to section 9 of the Theft Ordinance, Cap.210, and

(c) five charges of attempted theft, brought against him under section 9 of the Theft Ordinance, Cap.210, and section 159C of the Crimes Ordinance, Cap.200.

2.  The court makes an order by consent leaving Charge 8, a charge of theft, in the court file marked not to be proceeded with without the leave of the court or that of the Court of Appeal.

Facts

3.  The facts to which the defendant agrees are as follows. 

4.  The victim, Mr Lee, and the defendant lived in separate rooms of a flat.  In December 2009, the defendant was unemployed and had no income.  He spied on Mr Lee and took an opportunity to go inside his room to steal ten blank cheques (Charge 1). 

5.  On 15 December 2009, the defendant falsified Mr Lee’s signature on one of the cheques, entered an amount of $5,000 on it, presented it to the bank, and took away the money (Charge 2). 

6.  Later the same day, he presented to the bank another cash cheque purportedly issued by Mr Lee in the sum of $2,850 (Charge 3).  The bank sought confirmation from Mr Lee.  As Mr Lee had not issued such a cheque, he instructed the bank not to honour it.

7.  On 5 January 2010, the defendant again falsified Mr Lee’s signature on a total of eight cheques and had them deposited into his own account (Charges 4 to 7): 

Charge	Amount ($)
4	18,260
5	18,490
6	38,500
7	178,900
Total	254,150

8.  The bank notified Mr Lee, who gave instructions to stop payment, so the amounts credited to the defendant’s account were reverted to Mr Lee’s account. 

9.  The police arrested the defendant on 9 December 2009.  Under caution, he made full confession to the charges. 

Conviction

10.  On his pleading guilty to Charge 1, the court finds that the moment the defendant entered Mr Lee’s room, he had had the intention to steal his cheques. 

11.  The court finds the defendant guilty of Charges 1 to 7. 

12.  The defendant has had 11 criminal records before his current conviction, four of which relate to offences of theft.   

Mitigation

13.  In mitigation, the defence puts forward the following matters for the court’s consideration.

14.  The defendant pleads guilty to the seven charges to express remorse.  He is now 34 years old.  He lives with his girlfriend.  He is a marble worker making about $10,000 a month. 

15.  The defendant’s mother is a cleaning lady.  The defendant would help her at night, to lessen her work burden. 

16.  Counsel for the defence asks the court to consider the theft and attempted theft charges ensemble. The defendant’s mode of commission of the attempted theft charge has been unsophisticated; there really was no way, counsel submits, that the defendant would get away with it, depositing the cheques into his own account. 

17.  The defendant has, it is submitted, got rid of his drug addiction during the remand period, and vows to turn over a new leaf.  He has written a letter to court to that effect.

18.  Counsel urges the court to apply the principle of totality and to pass a concurrent sentence on the defendant.

Discussion

19.  Burglary involves breaking into private property with intention to steal.  There is a clear public interest in protecting private dwellings from unauthorized invasion.  Once burgled, even when extra anti-theft devices are installed, there will always be a lingering doubt that the home is no longer safe. 

20.  When a dwelling place is burgled, there is always a chance of occupants being inside, who may take action to protect their belongings, leading to severe consequences.

21.  The offence of burglary is all too common in Hong Kong. 

22.  In view of these factors, the Court of Appeal has laid down a sentence guideline of three years’ imprisonment in cases where domestic premises are burgled (HKSAR v Lau Pang [2004] 3 HKLRD 565).  The defendant in this case was most certainly not an opportunist or a sneak thief:  he had spied on Mr Lee before entering his room, not merely to snatch up whatever valuables he happened to come across, but targeting Mr Lee’s cheques.  There is no justification to depart from the sentence guideline. 

23.  The defendant has, within a three-week period, falsified Mr Lee’s signature on various cheques, presented one of them to the bank and obtained $5,000 cash, attempted to cash another cheque with a face value of $2,850, and finally credited to his own account some $250,000 of Mr Lee’s money.  Needless to say, the theft and the attempted thefts committed by the defendant, foolish as the constituent conduct might have been, are extremely serious.  An overall starting point for the theft and attempted theft charges should be one of 18 months’ imprisonment. 

24.  In the court’s view, for all the charges of which the defendant stands convicted, a global starting point of four years would be adequate to reflect the gravity of the crime.  

25.  Apart from his guilty pleas, nothing in the defendant’s personal and family background would warrant any further reduction in sentence. 

26.  In the result, a starting point of three years is adopted for Charge 1, which is reduced by one-third to reflect the defendant’s guilty plea to one of two years’ imprisonment. 

27.  A starting point of 15 months would be appropriate for each of Charges 2 to 7, which is likewise reduced by one-third to ten months’ imprisonment.

28.  Having considered the principle of totality, the court orders that the sentences for Charges 2 to 7 should run concurrently, but eight months of the ten months’ sentence for these six charges should run consecutively to the two years’ imprisonment for Charge 1, resulting in a final sentence of 32 months’ imprisonment.  

29.  In fixing this sentence, the court has given full consideration to the compensation proposal made by the defence.   

Order

30.  The defendant is sentenced to a term of imprisonment of 32 months. 

31.  The defendant is to pay Mr Lee Lap-kei $5,000 by way of compensation, to be taken out from his bail money.