HKSAR v. YEUNG KWAN-HUNG

DCCC1379/2009

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 1379 OF 2009

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Reasons for Sentence

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1.  Defendant has pleaded guilty to five counts of burglary, one count of loitering with intent, and one count of possession of Part I poison.

2.  The facts show that the burglaries were all committed in schools during the night, and the defendant’s modus operandi was to break into the school tuck-shop or canteen using a crowbar or using tools, and then stealing from the cash register.

3.  The cash taken on the first occasion, on the 1st charge, was $5,327.20; on the 2nd charge was $245, but he left behind damage costing about a $1,200; on the 3rd charge he took some $15,735.50; and on the 8th charge he was seen by a security guard before he could take anything; and on the 9th charge he took about a $1,000 from the tuck-shop.

4.  On the evening of 25 September 2009 the defendant was seen trying to break into a parked car. He was seen pulling at the door handles of the two cars which were parked on that street.

5.  After he was arrested and cautioned he admitted that he had tried to gain entry to the parked cars to see if there was anything to steal, and because of that he was charged with Charge 10, loitering with intent. And on that occasion 10 tables of zopiclone, which is a Part I poison, was also found on his person. The defendant claimed that he had bought the tablets from a man in the street to help him sleep.

6.  An identification parade was held, and the security guard who saw the defendant in Charge 8 identified the defendant as the person he saw. The face of the defendant had also been captured on CCTV camera in relation to Charges 1 and 2.

7.  The defendant is aged 38 and has an extremely poor record. He has some 21 previous convictions, 10 of which are for burglary. The last time he was sent to jail was in 2006. That was for some four charges of burglary. But it appears that on that occasion, on the sentences he received was not enough to deter him from committing burglaries again.

8.  The only mitigating factor I can see, as Mr Leung indicated, was the fact that he had pleaded guilty and he did make frank admissions. The defendant’s sentencing was adjourned for a psychiatric report basically at the request of the defence to explain why the defendant was in possession of the Part I poison. It appears that he did have some psychiatric problems. He failed to attend psychiatric follow-up. In order to help him sleep, he then bought these Part I poison on the street in order to facilitate his sleep.

9.  The conclusion of the psychiatrist is that the defendant has a long serious drug problem with psychiatric complications, he is suitable for some outpatient psychiatric assistance, and he is fit to plead.

10.  On behalf of the defendant, his brother and wife had written letters to this court asking for leniency. The defendant has no one to blame but himself. As can be disclosed in the elder brother’s letter, the defendant’s parents are loving and industrious people who came to Hong Kong in order for a better life for their sons. His father was a teacher in China, but having come to Hong Kong had to work as a coolie to raise the family. The defendant has been indulgent and selfish, and it is clear that his parents have still not given up on him.

11.  His wife has also written a letter on his behalf. The defendant is a selfish man who does not deserve the attention and love of his family if he continues to indulge himself in drugs. These are very serious offences and, as Mr Leung correctly pointed out, the only way perhaps to help him stay away from drugs is for him to be in prison to help him get rid of his drugs habit. Because at this stage in his life the only person who can help him is himself.

12.  Now, for non-domestic burglary the courts have laid down guideline that the starting point should be one of 2½ years’ imprisonment. Because the defendant pleaded guilty he is entitled to one-third discount. So the sentence on each charge of burglary, that is Charges 1, 2, 3, 8 and 9, will be 20 months’ imprisonment. I had seriously considered increasing the starting point, but in this case, as Mr Leung pointed out, he did frankly admit to the burglaries which had not been captured on CCTV camera. And so I give him the benefit of that, which is an indication of his remorse. So I will not increase the starting point.

13.  In relation to the loitering with intent charge, Charge 10, I consider that an appropriate starting point would be one of 18 months, reduced to 12 months because of his plea.

14.  On the 11th charge, which is possession of Part I poison, I impose a starting point of 6 months, reduced to 4 months because of his plea.

15.  I have to look at the totality principle. In considering that and considering the overall criminality, I will sentence the defendant in the following way: In Charge 1 he is sentenced to 20 months’ imprisonment; Charge 2 is 20 months; Charge 3 is 20 months; 2 and 3 will be served concurrently, but 10 months of that will be consecutive to the 20 months in Charge 1; Charge 8, he is sentenced to 20 months’ imprisonment; Charge 9, he is sentenced to 20 months’ imprisonment, both served concurrently, and 10 months of that will be consecutive to the sentences in Charges 1, 2 and 3. That brings us to a total of 40 months’ imprisonment for the burglary charges.

16.  Then for the 10th charge of loitering with intent, 6 months of the 12 months will be consecutive to the 40 months. To the 11th charge, 2 months will be consecutive to the sentences above, so giving us a total of 48 months’ imprisonment.

17.  So the defendant goes to prison for 4 years.