HKSAR v. CHEUNG YIU LUN

DCCC 294/2013

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO.294 OF 2013

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Reasons for Sentence

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1.  The defendant is also the 2^nd defendant in DCCC 144/2013. He had asked the court to deal with the sentence in the present case alongside the other case.

Facts

2.  In relation to charges 1 and 2, the defendant targeted restaurants during their break time and stole from staff of the restaurants.

3.  In relation to charges 3 to 6, the defendant used the cash withdrawal cards he stole in charge 2 to withdraw cash from the victim’s account.

Previous convictions

4.  D has 15 convictions. 6 of them were between 1994 and 2004, one was for burglary in 2006, one for attempted theft in 2008, one for robbery in 2009. His latest conviction was for possession of dangerous drugs in February 2013 when he was sentenced to 6 months’ imprisonment.

5.   Mitigation

6.  Mr. Chan for the defendant made a brief submission in mitigation. D2 is 38. His father is a retired Police officer while his mother is retired. He also has a younger sister. Mr. Chan submits that D2 is a hard working person. He used to work as a construction site worker earning $500 a day. He used to be able to work 26 days a month but has recently only been able to find work 15 days a month.

7.  I was told that since D2’s last conviction for robbery in 2009, he had been working hard and had met his girlfriend. The reason why he committed the offences is his lack of money and work, making him unable to look after his girlfriend and her daughter. He feels great remorse, he knows what he did was bad, and he is afraid that his girlfriend may leave him.

Sentence

8.  The maximum sentence for theft is that of 10 years’ imprisonment.

9.  Mr. Wong for the prosecution referred me to the case of HKSAR v Zhou Dingshu, HCMA 96/2004 where a starting point of 12 months’ imprisonment for a theft by the applicant of a shopping bag from a shopper with a newly bought camera inside was considered appropriate.

10.  The time of commission of charges 1 and 2 fit in with a period of inaction in the other case of DCCC 144/2013 where the defendant in our present case is the 2^nd defendant. This should be taken into consideration when deciding on totality of sentence between the 2 cases.

11.  Just as in the other case, the defendant continued to target restaurants during break times.

12.  For the 2 restaurant stealing offences, I will adopt a starting point of 12 months’ imprisonment for each, reduced to 8 months’ imprisonment upon the defendant’s guilty plea.

13.  In relation to the thefts by using the cards the defendant had stolen during the commission of charge 2, I will adopt a starting point of 12 months’ imprisonment, reduced to 8 months’ imprisonment upon the defendant’s guilty plea.

Totality

14.  Bearing in mind the circumstances of the case, that the stealing were planned and the defendant had not once, not twice but 4 times used the card stolen to withdraw cash from the victim’s account, I find that an overall sentence for the 6 charges would have been 3 years’ imprisonment, discounted to 2 years upon his guilty plea.

15.  I will therefore order that the sentences for charge 1 and 2 be served consecutively, the sentences for charge 3 to 6 be served concurrently, but consecutively to the other sentences. The total sentence for the 6 offences is therefore 8+8+8 = 24 months’ imprisonment.

16.  I am mindful that if the sentence in this and the other case are served consecutively the total sentence will be 54 months’ imprisonment. This I find is far too severe an overall sentence.

17.  It must however not be forgotten that the defendant had targeted restaurants and had committed multiple thefts which are on the verge of being burglaries.

18.  After careful consideration, I will order that 6 months of this case’s sentence to be served consecutively to the 30 months sentence in DCCC 144/2013. The total sentence the defendant will serve for both cases is therefore that of 3 years’ imprisonment.