HKSAR v. LEUNG TING FUNG AND ANOTHER

DCCC 51/2014

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO.51 OF 2014

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Reasons for Sentence

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1. There are 2 defendants in this case. D1 pleaded guilty to charges 1, 2, 4 and 6 while D2 pleaded guilty to charges 1 and 6. Charges 3 and 5 against D1 and charge 2 against D2 were ordered to be left on file, not to be proceeded with without the leave of court.

Summary of facts

2. Charges 1, 2 and 4 took place at different floors of a complex known as North Point Welfare Association at no.210 Java Road, North Point. Charge 1 and 2 took place at Betterment College located on the 2^nd floor while charge 4 took place at NPKEA Student Services Centre on the 6^th floor of the complex.

Charge 1: burglary

3. Betterment College was found to have been burgled on the morning of 4^th December 2012. The lock of the backdoor and a chain securing another backdoor leading to the school hall were damaged (repair cost $1,050). 2 USB memory sticks ($200) and $600 cash was stolen.

4. Police officers attended the College and seized two cigarette butts from a toilet in the College. DNA tests on the butts returned D1 and D2 as the likely people who had had contact with the butts.

Charge 2: burglary

5. About 2 months later, on the morning of 20^th February 2013, one of the teaching staffs of the College found that the door of the male toilet was burnt and damaged (repair cost $1,000). Signs of ransacking were found at the reception, classroom 4 and the principal’s office. No property had been stolen.

6. Fingerprints were lifted from the reception and the drawers of the cabinet inside the principal’s office. They were found to be a match with D1’s fingerprints. Another 4 fingerprints lifted from the top of a piece of glass at the reception were found to be a match with D2’s left palm.

Charge 4: attempted burglary

7. About a week later, on 28^th February 2013, the handyman of the North Point Welfare Association returned to work to find the storeroom located on the ground floor had been ransacked.

8. On the same day, the janitor of the Student Service Centre returned to work to find the glass backdoor of the Centre had been prized and the glass panel damaged (repair cost $2,500). She also found 5 screwdrivers, 2 chisels and 2 pairs of pliers on the floor near the backdoor. No property was stolen.

9. Fingerprints were found on the outside of the wooden backdoor at the rear staircase of the Centre and they matched the prints of D1’s left little finger and left palm.

Charge 6: burglary (domestic premises)

10. At around 11am on 12^th March 2013, PW5 left her family house at No.26D Shek O Headland Road, Shek O with her husband. She closed the door but did not lock it since her domestic helpers were still inside.

11. At around 7pm the same day, one of the helpers, PW6, saw an unknown male at the rear entrance of the house. PW6 went out to tell him to leave and the male walked away. When PW6 was walking back towards the house, she saw another male running from the house. PW6 immediately returned to the house but did not find anything unusual.

12. At around 9:30pm that night, PW5 returned home to find the door to the house opened. When she entered the house, she saw 2 unknown males carrying her safe. The males immediately fled upon seeing PW5, who gave chase. The 2 males abandoned the safe in the bush outside the house.

13. PW5 found her daughter’s drawer near the hillside outside her house. Upon checking, there were signs of ransacking all over the house.

14. Fingerprints were lifted from inside the house and they matched the defendants’ fingerprints.

Arrest

15. The defendants were arrested on 27^th March 2013.

16. D1 admitted under caution that he burgled Betterment College with D2 in mid-February 2013. He also said that he and D2 were in Shek O on 11^th March 2013 and found the doors and gate of the house in charge 6 unlocked. They returned to the house the next day and entered the house together as the doors were unlocked. They searched the house and found a safe. They carried it to the ground floor when they saw PW5 came home and immediately fled and later abandoned the safe.

Previous convictions

17. D1 has 7 previous convictions. 4 of those convictions were related to the use of a motor vehicle and they were all on 2^nd April 2013. The remaining 2 convictions were for burglary and arson respectively when he was sentenced to a total of 26 months’ imprisonment in the District Court on 3^rd April 2013. His original estimated release date is 25^th August 2014.

18. D2 was of clear record at the time of the commission of charges 1 and 6, but he was also convicted together with D1 in the same case of burglary and also sentenced to 20 months’ imprisonment. His original estimated release date is 3^rd April 2014.

19. I was told that the commission of that earlier burglary case was in October 2013, about 2 months before their commission of charge 1 in the present case.

Mitigation

D1

20. Ms. Lin prepared a very helpful written submission in mitigation.

21. The defendant is 21, single and educated up to secondary 4 level. He grew up in a single parent family and started to work as an apprentice in a hair salon when he was 16, earning about $6,000 per month. He was however unemployed at the time he committed the present offences.

22. D1 wrote to let the court know how remorseful he is of his previous conduct. During his present remand, he had enrolled in a vocational training course organized by the Correctional Services Department and will be looking forward to rejoin society as a useful member.

23. D1’s mother also wrote to the court, explaining how the departure of the defendant’s father when he was still young had impacted the defendant, resulting in his lack of interest in studying and eventual fall from grace.

D2

24. I have also been provided with a very helpful written submission in mitigation by Mr. Lou.

25. D2 is 22 years old, educated up to secondary 5 level and single. He was unemployed at the time of the commission of the offences. The main mitigating factor for D2 is his guilty plea and the fact that the victims in the burglaries did not suffer much loss.

26. At the time of the commission of charge 1, the defendant was of clear record and only 20 years old. He was 21 when he committed charge 6. The property involved in the case is minor and damage to property was not substantial. In relation to charge 6, the victim did not suffer any loss. Wish to consider totality of sentence and be as lenient as possible. D2 would be released on 3^rd April 2014 in relation to the sentence that he is serving now.

Sentencing Tariff

27. It is trite law that burglary of non-domestic premises attracts a starting point of 2 and a half years’ imprisonment, and that of domestic premises a starting point of 3 years’ imprisonment, subject to any mitigating or aggravating factors.

Sentence

28. The maximum sentence for burglary under s.11(4) is that of 14 years’ imprisonment.

29. Having heard the defendants’ mitigation, I do not see any reason to depart from the guideline sentence. I do not hold the previous District Court burglary convictions against the defendants as an aggravating factor. They had not been convicted at the time of the commission of charge 1.

Charge 1 burglary: D1 and D2

30. The burglary was not opportunistic. The total loss suffered by the College was only around a few hundred dollars. There are no aggravating factors in relation to this burglary of a non-domestic premises. I adopt a starting point of 30 months’ imprisonment for both defendants, discounting it to 20 months’ imprisonment upon their guilty plea.

Charge 2 burglary: D1

31. Charge 2 was committed about 2 months after Charge 1. The victim did not suffer any loss save for the damaged doors. There are no aggravating factors. For this charge, I also adopt a starting point of 30 months’ imprisonment, discounting it to 20 months’ imprisonment upon D1’s guilty plea.

Charge 4 attempted burglary: D1

32. Charge 4 was committed just 8 days after Charge 2. The victim did not suffer any loss save for the damaged door. There are no aggravating factors. For Charge 4, I adopt a starting point of 30 months’ imprisonment, discounting it to 20 months’ imprisonment upon D1’s guilty plea.

Charge 6 burglary: D1 and D2

33. It is not disputed that this is burglary of a domestic premises. This charge was committed by D1 and D2 just 13 days after D1 committed charge 4. Charge 6 was not the first burglary that the defendants had committed.

34. The defendants were intercepted while they were moving the safe and had to abandon it when they had to flee. The victim did not suffer any loss. There are no aggravating factors. In relation to each of the defendants, I will adopt a starting point of 3 years’ imprisonment, reducing it to 2 years’ imprisonment upon their guilty plea.

Totality

D1: charges 1, 2, 4 and 6

35. Charge 1 took place on 3^rd and 4^th December 2012, charge 2 took place on 19^th February 2013, charge 4 took place on 28^th February 2013, and charge 6 took place on 12^th March 2013.

36. Charges 1, 2 and 4 are burglaries of premises inside the same complex over a period of around 2 months. The losses suffered were however minor.

37. Of the 4 charges, charge 6 is the more serious, involving the invasion of domestic premises and at a time when it is likely that the occupants are home. The defendants conducted surveillance of the house before returning on the next day to burgle the premises. The victim however did not suffer any loss.

38. Bearing in mind the principle of totality, I order 5 months of charge 1, 5 months of charge 2 and 5 months of charge 4 be served consecutively to the sentence of charge 6. D1 is sentenced to a total of 39 months’ imprisonment.

39. I order D1’s sentence in the present case to be served wholly consecutively to the sentence he is serving in relation to the burglary and arson convictions dated 3^rd April 2013.

D2: charges 1 and 6

40. Charge 1 took place on 3^rd and 4^th December 2012 and charge 6 on 12^th March 2013. They are burglaries of different premises, one in North Point and the other in the more remote area of Shek O. As Mr. Lou rightly pointed out, the victim in charge 1 suffered only minor losses while the victim in charge 6 did not suffer any loss. D2 however did visit the Shek O premises one day before they actually committed the burglary. There was definitely planning in relation to the commission of this offence.

41. Bearing in mind the principle of totality, I order 10 months of charge 1 to be served consecutively to the sentence in charge 6. D2 is sentenced to a total of 34 months’ imprisonment.

42. I order this sentence to run wholly consecutively to the present sentence that D2 is serving in relation to the burglary conviction dated 3^rd April 2013.