HKSAR v. LUNG PAK LONG

DCCC 1118/2021

[2022] HKDC 816

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 1118 OF 2021

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REASONS FOR SENTENCE

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1.  The defendant is a man of previous good character in his early twenties.

2.  He faced seven charges of burglary of non-domestic premises in Yuen Long and Tin Shui Wai, New Territories which took place within a span of only 10 days in March 2021 involving cash of $1,500 to $48,229.

3.  When he appeared before me this morning, he pleaded guilty to Charges 2, 3, 5, 6 and 7, while the prosecution agreed to have Charges 1 and 4 left on court file as a result of plea bargaining.

The facts

4.  The relevant five charges were committed between 18 and 28 March 2021 in a similar manner.  The particulars of the offences have been succinctly summarized by Mr Ng, counsel for the defendant in the following table and I shall adopt the same for easy reference:-

Charges	Date	Time	Location	Stolen items
2	18-3-2021	About 3:20 am	Shop A124C, Kingswood Richly Plaza Phase 1, Tin Shui Wai	$1,500 cash
3	19-3-2021	About 4:58 am	Shop M120-122, Tin Shing Market, Tin Shui Wai	$10,000 cash
5	25-3-2021	About 11:33 pm	Shop 10, Ho Shun Lee Building, Yuen Long	$5,000 cash
6	26-3-2021	About 3:10 am	Shop 15, Yik Fat Building, Yuen Long	$6,000 cash
7	28-3-2021	About 11:27 pm	Shop 3, Long Ping Market, Yuen Long	$48,229 cash; A silver iron box; a plastic box, a blue iron box; and 7 keys.
Total cash stolen:				$70,729.00

5.  For Charges 2 and 3, each of the subject premises was an open stall with no door in a shopping centre or a market while in Charges 5 and 6, entries had been achieved forcibly.  On those occasions, the defendant had also prized open the drawers or cash register thereof to steal the money inside.

6.  For Charge 7, the defendant had worked in the noodle shop as a waiter before and he knew where the keys of the safe were stored.

7.  The defendant was arrested on 29 March 2021.  Upon search, $39,542.80 in cash was found.  It was also discovered subsequently that he had, using a coin machine to convert the stolen money, added value to his Octopus Card and his Octopus Wallet with his Samsung mobile phone.  Under caution, the defendant admitted all charges.

Background and criminal records

8.  The defendant is 22 years old and is single.  After studying to Form 3 level, he left school and worked as a transport worker.  He earned about $20,000 per month before the starting of the pandemics.  He lived with his parents (both 50 years old)  and three younger sisters (all students)  in a family-owned village house in Yuen Long. Each month, he contributed about $5,000 to his parents as household expenses.

Mitigations

9.  According to Mr Ng, before the defendant was arrested, he was already earning less than half of what he usually earned, at only about $7,500 per month.  The defendant confessed that he committed the present offences, partly because he could not make ends meet, and more importantly, because he had lost about $130,000 through gambling online.

10.  Mr Ng said while some of the money the defendant had stolen were used for his personal expenses, more were used to repay the gambling debt.

11.  Mr Ng emphasized that the defendant had been fully co-operative with the police upon his arrest and admitted all his misdeeds in the video interviews under caution.

12.  Mr Ng acknowledged that the committing of multiple offences by the defendant is an aggravating feature in the present sentence.  Although the court would be most likely to consider the defendant as a professional burglar instead of an opportunist, he still urged the court to accept that the offences were committed without high degree of premeditation and planning.  No heavy instrument or equipment was used to enter the premises and the damages, if any, were minimal.

13.  It is also submitted by Mr Ng that the offences did not target at substantial premises or involved substantial properties.  The amount of the stolen money was not on the highest side if compared with other similar cases.

14.  Having already been remanded in custody for more than 1 year and 4 months, the defendant has had the opportunity to reflect on his misdeed and he felt extremely ashamed and remorseful.  Mr Ng said the defendant has decided to turn a new leaf as he does not want his parents to worry about him anymore.  In his mitigation letter, the defendant stated that he sincerely and deeply regretted his foolish behaviours.  He promised not to re-offend in the future. He will stop gambling and better control his personal finance.

15.  There is also another mitigation letter from the defendant’s mother. She stated that his son was a person of good nature.  She praised the defendant as a caring son, brother and grandson.  She observed that the defendant is very remorseful for what he did.  She believes the defendant had learned a lesson and asks the court to pass a lenient sentence.

Sentencing Considerations

16.  The present case involves, as it were, multiple burglaries of non-domestic premises in 10 days within a month.  As far as sentence is concerned, much will depend on the aggravating circumstances of each individual case.

17.  The proper starting point for non-domestic premises shall be 2 years and 6 months’ imprisonment, for a first offender of full age in the absence of aggravating factors (see R v Wong Man [1993] 1 HKC 80 and also HKSAR v Sim Ka-wing CACC 450/2000).

18.  This conventional starting point already takes into account that “such burglaries will involve a measure of planning, and thus a degree of premeditation and planning is already built into the conventional starting point”: (see per Keith JA, HKSAR v Sim Ka-wing).

19.  As to what will constitute aggravating features, in HKSAR v Cheng Wai Kai [2008] HKCU 932, Yeung JA held:-

“The starting point can be adjusted upwards if there are aggravating circumstances such as (1)  the offence is carefully planned and skillfully 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 similar nature, and (6)  the offender commits multiple offences”

20.  It is also apparent 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.

21.  In the present case, there were a number of aggravating features in that over the period when defendant committed the offences, he acted as a professional or serial burglar.  The burglaries were not merely opportunistic and on two occasions, the drawer of the checkout desk of the shop (Charge 5)  and the cash register of the premises (Charge 6)  were prized opened, and in Charge 7, the defendant even brought 2 pair of pliers and a pair of scissors to the noodle shop with the intention to use the tools to open the safe, all these being an indication of the degree of planning and premeditation.  The total value of the cash stolen for the five offences was more than $70,000.

22.  That said, there were some mitigating factors.  Apart from the defendant’s plea of guilty, there was no evidence against the defendant in the burglaries in Charges 2, 3, 5 and 6 but for his frank admission to the police.  There was also no substantial damage done to the various premises nor to things found inside apart from the cash register and the safe in both Charges 6 and 7.

23.  As for totality, since each offence was separate and distinct in terms of time and place, and that no less than 5 offences had been committed repeatedly in a short span of 10 days involving different shops, there was no justification for wholly concurrent sentences.  I conclude that I am perfectly entitled to adopt a higher overall starting point than I might have adopted for a single offence, and to achieve the resulting sentence by way of partly consecutive sentences.

24.  Before sentencing this defendant, I have carefully considered the facts of each offence, the authorities supplied by the defence and the mitigation advanced on his behalf and taken into account all the aggravating and mitigating factors present in this case.  I should say from the outset that the only effective mitigation is defendant’s plea and his hitherto clear record.  His gambling habit and his economic pressure to find quick money to repay his gambling debts is not something the court can accept as a mitigating factor at all.

25.  For each of the charges, I shall adopt a starting point of 2 years and 9 months or 33 months representing the usual starting point of 30 months and an enhancement by 3 months to reflect the fact that the defendant had committed multiple offences within a month targeting different premises in the same area and the fact that he was a professional burglar.  Although in Charge 7, the defendant has obviously targeted the noodle shop with some insider information he had obtained when he used to work as a waiter there but no enhancement will be ordered because the “breach of trust” consideration did not strictly apply as he had already left employment a long time ago.  However, an extra 3 months will still have to be added in Charge 7 to properly reflect the fact that the amount of cash stolen on this charge alone ($48,229)  represents about 68% of the total amount stolen in all the charges.  After the 1/3 discount, the sentence on Charges 2, 3, 5 and 6 is 22 months and on Charge 7 is 24 months.

26.  As for the total sentence, I consider the overall criminality of these 5 charges attracts a starting point of 4 years and 6 months or 54 months’ imprisonment which should be reduced by 1/3 to 36 months’ imprisonment for the defendant’s pleas of guilty.  In order to achieve the resulting sentence, I simply order that 3 months of each of the Charges 2, 3, 5 and 6 to run consecutively to Charge 7, making a total of 36 months’ imprisonment.

27.  Finally, I was informed today that the defendant has already made further compensation to all the shops via the police in relation to all the stolen cash together with the repair costs, if any, arising from the 5 burglaries. This payment, together with the cash already seized by the police, represents a full restitution   and clearly warrants a further reduction in sentence.  In the end, I reduce the total sentence for a further 2 months to 34 months accordingly.