HKSAR v. CHEUNG KIN MAN AND OTHERS

DCCC 361/2012

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 361 OF 2012

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BETWEEN

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Reasons for Sentence

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INTRODUCTION

1.   D1 is convicted on his own plea of the 1^st charge of attempted burglary, the 2^nd charge of burglary and the 3^rd charge of driving in excess of speed limit whereas D2 and D3 are both convicted on their own pleas of the 2^nd charge of burglary.

FACTS

1^st charge

2.  At about 5:50 pm on 19 December 2011, LEUNG Tin-lok (“PW6”) who lived at ground floor, Block G, Chun Wah Villas, Phase I, Nam Hang Tsuen, Shap Pat Heung, New Territories heard loud noises coming from the alarm system installed at the 2^nd floor of the same building (“Flat 1”). PW6 therefore caused a check and found a Chinese male tampering with the window at the balcony of Flat 1. PW6 shouted at that male. That male immediately jumped down from the balcony to the ground level.

3.  LO Shiu-man (“PW7”) lived at the 1^st floor of a house adjacent to Block G. PW7 saw another male wandering outside the ground floor of Block G.

4.  Soon afterwards, PW6 and PW7 saw the two males board a private car with the registration number NZ9243 (the “Car”).

5.  HUNG Hin-ki (“PW8”) lived at Flat 1. Upon return to Flat 1, PW8 found nothing stolen from Flat 1 but he found that the window of the balcony had been prized open and the window frame damaged.

2^nd charge

6.  CHENG Vincent (“PW9”) lived at ground floor, No.33 Pak Kong Au, Sai Kung, New Territories (“Flat 2”). He left Flat 2 unattended from 7:30 am on 29 December 2011 and returned to Flat 2 at about 11:55 pm that day. Upon his return to Flat 2 on the evening of 29 December 2011, PW9 found that the window at the living room of Flat 2 prized open and that the following items were missing:

· one “Nikon-D5000” digital camera with two lenses;

· one red “Nokia-E65” mobile phone;

· one “Sony-PS3” game player;

· two bottles of red wine; and

· one bottle of honey.

3^rd charge

7.  On 29 December 2011, the Car was found to be speeding at 73 km/hour (after having given an allowance of 4 km/hour) at New Clear Water Bay Road heading towards Kowloon direction. The statutory limit at that road was 50 km/hour. The Car was then stopped by the police at a roadblock set up at lamppost no.AB2362. D1, D2 and D3 were taking the driver seat, the front passenger seat and the rear passenger seat of the Car respectively.

8.  The police officers found two crowbars inside a rucksack at the vehicle compartment and a screwdriver at the left front passenger door of the Car. The police officers also found the following items (collectively “the Stolen Property”) at the rear passenger seat of the Car:

· two digital cameras;

· two lenses;

· one game machine;

· one watch;

· one video camera;

· one mobile phone;

· two bottles of wine;

· one bottle of honey;

· cash of RMB357;

· cash of Thai Baht 150;

· cash of Philippine Peso P3,650;

· cash of SGD$4; and

· cash of $2,650 New Taiwan currency.

PW9 subsequently identified the Stolen Property as property stolen from Flat 2. The total value of the Stolen Property was HK$11,300.

Forensic Evidence

9.  The police lifted one partial shoeprint from the balcony ledge of Flat 1. Upon comparing that shoeprint with the shoeprint sample obtained from the right shoe worn by D1 when he was arrested, Forensic Scientist Dr. Tam Chok-ming (“Dr. Tam”) confirmed that they agree in outsole pattern.

10.  The police also lifted four partial shoeprints from the table inside Flat 2. Upon comparing those four partial shoeprints with the shoeprint samples obtained from the shoes worn by D1, D2 and D3 when they were arrested, Dr. Tam found that:

· one partial shoeprint lifted from Flat 2 matched in outsole pattern with the shoeprint sample obtained from the left shoe worn by D1;

· two partial shoeprints lifted from Flat 2 matched in outsole pattern with the shoeprint samples obtained from the shoes worn by D2; and

· one partial shoeprint lifted from Flat 2 matched in outsole pattern with the shoeprint sample obtained from the right shoe worn by D3.

11.  The police also lifted a striated mark from the screwdriver found at the front passenger door of the Car and one striated mark from Flat 2. Dr. Tam found that the striated mark lifted from Flat 2 agreed in fine striation patterns with the striated mark obtained from the said screwdriver.

PREVIOUS CONVICTION RECORDS AND ANTECEDENTS

12.  D1 has appeared in courts on 14 different occasions since 1992 with a total of 46 convictions. Out of the 46 convictions, there were 29 convictions of burglary, 4 attempted burglary, 5 robbery and 4 going equipped for stealing. He also has 29 traffic convictions since 2005. He was born in Hong Kong in January 1974 and is now 38 years old. He has received education up to Form 3 level.   

13.  D2 has appeared in courts on 9 different occasions since 1996 with a total of 12 convictions. Out of the 12 convictions, there were 2 convictions of robbery and 1 conviction of burglary. He was born in Hong Kong in July 1983 and is now 28 years old. He has received education up to Primary 6 level.

14.  D3 has appeared in courts on 14 different occasions since 1993 with a total of 14 convictions. Out of the 14 convictions, there was 1 conviction of attempted theft. He was lasted sentenced in August 2011 for inter alia 2 months’ imprisonment suspended for 2 years. He was born in Hong Kong in February 1975 and is now 37 years old. He has received education up to Form 3 level.

MITIGATION

15.  In mitigation, Mr Wong submitted that the defendants pleaded guilty to the charge(s). In relation to the 1^st charge, Mr Wong submitted that the evidence against D1 was only circumstantial but yet D1 elected to plead guilty to the charge, and that PW8 did not suffer any loss as a result of the attempted burglary. As for the 2^nd charge, Mr Wong submitted that no violence was used, the residents were not frightened as they were not in Flat 2 when the defendants committed the burglary, and the Stolen Property was recovered. A letter from D3’s mother was also submitted to this court asking for leniency.

DISCUSSION

16.  In burglary of domestic premises, 3 years’ imprisonment is the proper starting point for a first offender of full age: R v Chan Yui Man CACC 36/1988, R v Chan Wing Ching CACC 100/1991, R v Luk Wai Kit CACC 99/1992, R v Wong Man CACC 372/1992, Attorney General v Lui Kam Chi [1993] 1 HKC 215 and HKSAR v Lau Pang [2004] 3 HKLRD 565. In the present case, D1 and D2 are not first offenders of burglary.

17.  In HKSAR v Wu Chi Tai Kennis [2011] 4 HKLRD I6[1] in which the Court of Appeal was dealing with an appeal against sentence involving inter alia 2 charges of attempted burglary and 1 charge of burglary, Mr Justice Hartmann JA said:

“21. In the course of their submissions, both counsel referred us to a number of cases involving multiple burglaries of non-domestic premises. From them we conclude that, as far as sentence is concerned, much will depend on the aggravating circumstances of each individual case. There is no notional upper limit.

22. As to what will constitute aggravating features, in HKSAR v Cheng Wai Kai [2008] HKCU 932, Yeung JA said that –

“The starting point can be adjusted upwards if there are aggravating circumstances such as (1) the offence is carefully planned and skilfully executed involving the use of heavy instruments or equipment; (2) the offence is committed by two or more people; (3) the offence targets at substantial premises and involves substantial properties; (4) the offender is a professional burglar and not just an opportunist; (5) the offender has previous convictions, particularly previous convictions of a similar nature, and (6) the offender commits multiple offences”

23. It is also apparent, as this Court (differently constituted) noted in HKSAR v Fan Kit Hung [2009] 6 HKC 314, that there is an increasing appreciation of the need for deterrent sentences for offenders who are professional or serial burglars.

24. In the present case, it is undoubted that there were a number of aggravating features. Over the seven weeks when he committed the offences, as Mr. Mughal conceded, the applicant acted as a professional burglar. Nor did he act alone. In the majority of cases he acted with others. The burglaries were not merely opportunistic; on two occasions a crowbar or similar iron bar was employed, this being an indication of a planned enterprise. The applicant was a man with previous convictions in addition to which one of the offences being the subject of this appeal was committed while the applicant was on police bail.”

Although non-domestic premises were involved in HKSAR v Wu Chi Tai Kennis, the aggravating features applicable to burglary of non-domestic premises should also be applicable to burglary of domestic premises. In this connection, the aggravating features in the 1^st charge are:

· there were 2 offenders, i.e. D1 and another unknown person; and

· D1 is a professional burglar[2] having 29 previous convictions of burglary, 4 attempted burglary, 5 robbery and 4 going equipped for stealing.

18.  As for the 2^nd charge, the aggravating features against all 3 defendants are:

· a screwdriver was used in the perpetration of the burglary in Flat 2; and

· the burglary was committed by 3 persons, i.e. the 3 defendants.

There are further aggravating features against D1:

· D1 is a professional burglar having 42 previous convictions of offences of the same or similar nature; and

· D1 committed the 2^nd charge 10 days after the commission of the 1^st charge.

As for D2, his case is further aggravated by his previous convictions[3], particularly his 2 convictions of robbery and 1 conviction of burglary. As for D3, his case is further aggravated by his previous convictions; but D3 only has 1 previous conviction of attempted theft sentenced in 1998. Despite D2 and D3’s previous convictions, I do not consider D2 or D3 a persistent offender of burglary cases.

19.  On the other hand, D1 is a persistent offender of burglary cases. In this connection, I bear in mind the rationale enunciated in HKSAR v Chan Pui Chi [1999] 2 HKLRD 830 for imposing a longer sentence for a persistent offender.

20.  Mr Wong submitted that the evidence in support of the 1^st charge was circumstantial but yet D1 elected to plead guilty. Mr Wong therefore submitted that it was a mitigating factor entitling D1 to some discount. In this connection, I am aware of cases where the offender pleaded guilty when evidence against him was otherwise flimsy, the court would consider it an indication of genuine remorse and thus give additional discount in sentence: HKSAR v Tsang Kai On [2011] 2 HKLRD 340. However, I do not consider the circumstances in the 1^st charge fall into this category. In this connection, D1’s involvement in the 1^st charge is evidenced by the presence of his shoeprint at the balcony ledge of Flat 1 as well as PW6 and PW7’s identification of the two burglars boarding the Car which was driven by D1 on 29 December 2011. The combination of these two pieces of evidence shows strongly that it was D1 who was at the balcony of Flat 1 attempting to break into Flat 1 at the material time. (The evidence in support of the 2^nd charge is even stronger as, in addition to the shoeprint evidence and the striated mark evidence, the Stolen Property was found in the Car.)     

21.  I do not consider it a mitigating factor that the residents of Flat 2 were not in Flat 2 when the burglary was committed – the 3 defendants were taking advantage of the absence of residents in Flat 2 to facilitate their commission of the burglary. The absence of use of violence is not a mitigating factor either – it would have been an aggravating factor if violence was used. The facts that PW8 did not suffer any loss as a result of the attempted burglary in the 1^st charge, and that the Stolen Property (in the 2^nd charge) was recovered were not mitigating factors – it would have been an aggravating factor if property of substantial value was stolen.

SENTENCE

22.  For the 1^st charge, in light of the facts of the case, the aggravating features against D1 I have identified and having considered the sentence imposed in HKSAR v Wan Ho Kit Lawence CACC 479/2000 (a lone burglar with 26 convictions of burglary, 10 theft, 2 attempted theft and 1 handling stolen goods), I adopt a starting point of 4 years’ imprisonment. One-third discount is given to D1 for his guilty plea thus reducing the sentence for the 1^st charge to 2 years and 8 months’ imprisonment. There being no further valid mitigating features justifying further reduction in sentence, D1 is sentenced to 2 years and 8 months’ imprisonment for the 1^st charge.

23.  For the 2^nd charge, the respective sentences for the defendants are as follows:

(i) In light of the facts of the case, the aggravating features against D3 I have identified, I adopt a starting point of 3 years and 3 months’ imprisonment on D3. One-third discount is given to D3 for his guilty plea thus reducing the sentence for the 2^nd charge to 2 years and 2 months’ imprisonment. There being no further valid mitigating features justifying further reduction in sentence, D3 is sentenced to 2 years and 2 months’ imprisonment for the 2^nd charge;

(ii) In light of the facts of the case, the aggravating features against D2 I have identified, I adopt a starting point of 3½ years’ imprisonment on D2. One-third discount is given to D2 for his guilty plea thus reducing the sentence for the 2^nd charge to 2 years and 4 months’ imprisonment. There being no further valid mitigating features justifying further reduction in sentence, D2 is sentenced to 2 years and 4 months’ imprisonment for the 2^nd charge; and

(iii) In light of the facts of the case, the aggravating features against D1 I have identified, I adopt a starting point of 4 years and 3 months’ imprisonment on D1. One-third discount is given to D1 for his guilty plea thus reducing the sentence for the 2^nd charge to 2 years and 10 months’ imprisonment. There being no further valid mitigating features justifying further reduction in sentence, D1 is sentenced to 2 years and 10 months’ imprisonment for the 2^nd charge.

24.  For the 3^rd charge, I impose a fine of HK$1,500 on D1, to be paid within the next 14 days.

25.  On totality for D1, having considered the total sentences imposed in HKSAR v Chow Keung CACC 478/2006 and HKSAR v Ng Ngai Shan [2009] 1 HKLRD A3, I order 1 year and 2 months’ imprisonment in the 1^st charge to run consecutively with the 2 years and 10 months’ imprisonment in the 2^nd charge, thus making a total sentence of 4 years’ imprisonment on D1 in respect of the 1^st and 2^nd charges. D1 is also required to pay the fine of HK$1,500 for the 3^rd charge. 

26.  As for D3, I activate his suspended sentence of 2 months’ imprisonment imposed in TWCC 2288/2011. Such 2 months’ imprisonment is to run consecutively with the 2 years and 2 months’ imprisonment imposed on D3 for the 2^nd charge.

27.  D2 is convicted on 2^nd charge only. His sentence is 2 years and 4 months’ imprisonment.

[1] HKSAR v Wu Chi Tai Kennis was referred to in HKSAR v Chan Kong Yiu [2011] 4 HKLRD 291.

[2] Please refer to paragraph 13 of HKSAR v Leung Tong and another CACC 412/2000.

[3] The fifth aggravating circumstance identified in HKSAR v Cheng Wai Kai [2008] HKCU 932.