HKSAR v. LEUNG KWOK WAH

DCCC654/2009

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 654 OF 2009

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Reasons for Sentence

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1.  Defendant, you have pleaded guilty to an offence of burglary of domestic premises on 10 October 2007 at a flat on the 1st Floor, 121 Apilu Street, Sham Shui Po where you had stole from the premises when you entered as a trespasser 17 mobile phones and a digital camera.

2.  On the day in question at about 2 pm the victim had left his premises, leaving his female relative and a baby in the premises. When he returned at 3.30 p.m. that same day he found the stolen property missing. When he left home he had not closed the wooden door and had not locked the iron grille of the premises. He saw a can of Coke with a straw on the floor near the main entrance. He believed that the can was left behind by the burglar. It was found that the DNA on the straw was found to match your DNA.

3.  On 5 November 2008 you were arrested by a police officer and under caution you admitted in a record of interview that you had burgled the premises and stole the mobile phones. You had sold the phones in Apilu Street for $2,000. You remember going to the premises in Apilu Street and as you noticed the wooden door of the premises was left ajar you believed the premises were unattended, so you opened its iron grille and entered the premises. You saw a female and a baby therein but you told them to stay at the bedroom. You told her to stay in the bedroom to look after the baby and you later stole the items.

4.  Your solicitor, Mr Tse, has made very full mitigation on your behalf and, as I will refer to later in my reasons, asked me to impose a more lenient sentence upon you in this case to reflect the principle of totality which I should take into account in respect of another sentence you were serving.

5.  You are 56 years of age. You have 21 previous convictions involving 49 charges, five of which are similar to burglary. You were a drug addict, you say, but you are now no longer drug dependent.

6.  Mr Tse has been forthright in his mitigation and accepts in view of your record in respect of burglaries that there should be an enhancement of the usual 3 years’ imprisonment. That was clearly reflected in your last sentence on 18 October 2008 when you received a 26 months’ sentence after a plea of guilty for an offence of burglary. He urges me to pass a similar sentence in this case subject to the further matters I will refer to later in my decision. I agree that this usual period of imprisonment for a domestic premises should be enhanced in view of the fact that you are a repeat offender of burglary, and in that case I would consider a 39 month starting point for this offence and giving you full credit for your plea of guilty will give you the usual one-third discount and reduce that to 26 months’ imprisonment.

7.  At first glance that should be the end of the matter. However, Mr Tse has submitted that this should not be the sentence which I should pass but I should reflect a much lower sentence in view of the fact that this charge against you should have been brought a lot earlier and during the time you were serving your previous sentence, and therefore to reflect the principle of totality the sentence should be much lower.

8.  Let me just refer to this as the last case conviction on 18 March 2008, burglary. In that case the offence was committed on 26 December 2007 and you were then sentenced 3 months later to 26 months’ imprisonment. You had committed this offence one month and 16 days before that offence - that is, on 10 October 2007. During the time you were serving your offence for the other burglary case the police arrested you and took a record of interview from you whilst you were in Stanley Prison on 5 November 2008 to the present offence. However, despite your admission to this present offence you were not charged for this offence until your release from prison on your other offence, and that was on 6 June 2009 when you were brought to the Kwun Tong Magistracy.

9.  On the very date of your release from prison of your last case on 5 June you were arrested by police for this case. You have therefore been remanded since 5 June and, in effect, have never been released from custody.

10.  You express your grievance to this case as it was brought up late. You have submitted through Mr Tse that you should have been charged for this offence much earlier than you were. In fact, you had made an admission to this charge some 7 months prior to your being charged. If you had been charged during the term you were serving your sentence in the last case the sentencing court would have been able to reflect much more appropriately the totality principle in view of these two burglary charges being committed at a very close proximity to each other.

11.  Mr Tsang, the Public Prosecutor for the prosecution, accepts there has been a delay in the prosecution of you but he submits that it is not an undue delay as a result of the requirement of the police to investigate the matter further, in particular the delay in receiving the positive DNA forensic result. He accepts, however, that there should be some reflection in your sentence to reflect the principle of totality.

12.  In this case, of course, the most incriminating evidence against you was your admission to the burglary. In my view, the DNA found on the straw on the Coke can would not have drawn any irresistible inference that you had burgled the premises as that Coke can was found outside of the premises, so the date of which the prosecution had the most incriminating evidence was in November 2008. Mr Tsang accepts that if legal advice from the Department of Justice had been taken at that time you might have been charged in, say, January 2009. That is some 6 months ago at least and would have been during the time you were serving your other sentence.

13.  I agree with Mr Tse’s submissions that I should take into consideration the principle of totality here, and had you been serving your other sentence whilst you were sentenced for this offence, a sentence would have been reflected to show the totality of two sentences.

14.  For two offences of burglary of which the sentence for each burglary would have been 26 months after a plea of guilty, I would have ordered a sentence of 39 months to be served in totality for two charges of burglary, and in the circumstances of this case I shall reduce the 26 months on the grounds of delay for bringing this case to court and in awarding you the benefit of the principle of totality reduce the 26 months to that of 13 months imprisonment in this case.