HKSAR v. LEUNG CHI WAI

DCCC 408 & 588/2017
(Consolidated)

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NOS 408 AND 588 OF 2017

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REASONS FOR SENTENCE

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1.  The present proceedings consist of two separate cases, namely DCCC 408 of 2017 and DCCC 588 of 2017. Each case involved one count of burglary. The defendant pleaded guilty to both counts and is convicted upon his plea and admission of facts.

DCCC 588/2017

2.  That case took place on 7 October 2016 and to 8 October 2016. Sometime during the evening, the defendant entered as a trespasser into a hut on the rooftop of No 58 Lai Chi Kok Road, Mongkok.  He ransacked the place and stole one television, four tablets of Chinese medicine and a power drill.  The total value of the victim’s loss was $6,800.  It was on the strength of a fingerprint left by the defendant inside the hut that he was identified and subsequently arrested.

DCCC 408/2017

3.  At about 11 pm on 26 February 2017, while police officers were patrolling in Apliu Street, they noticed the defendant on top of an iron gate of a shop near its signboard level.  The shop was then under renovation.  There were wooden boards erected outside the shop gate.  Subsequent inquiries revealed that the defendant had stolen a lock worth $20 from the premises.

4.  Under caution, the defendant admitted to both counts.

Discussions

5.  The case DCCC588/2017 was a burglary of a domestic premises: the hut had been used by the victim as a place of residence as well as storage.  In fact, the items stolen were all personal items.  Both prosecution and defence agree that for a burglary of domestic premises, the proper starting point is 36 months’ imprisonment.

6.  The case of DCCC 408/2017 is one of burglary on a non‑domestic premises.  The normal sentence should be 30 months’ imprisonment.

7.  In the present case, there are aggravating circumstances.  In the 1st count, at the time of the offence, the defendant was on bail for a different offence (KC 3125/16).  In respect of the 2nd count, the offence was committed within the same month the defendant was released from prison.  This court also noticed that the defendant had 32 convictions.  He committed a burglary in 2014.  There were a total of 15 counts involving dishonesty.

8.  Under the circumstances, I consider that the court ought to adopt a slightly higher starting point for both counts to reflect the aggravating factors in this case.  For the 1st count, instead of the usual 36 months, I will adopt 42 months as a starting point.  In respect of the 2nd count, instead of the usual 30 months’ imprisonment, I will adopt 36 months’ imprisonment as a starting point. 

Mitigations

9.  I turn to consider the mitigating factors present in the present case. First and foremost, the defendant pleaded guilty and he is entitled to the usual one-third discount.  For the 1st count, I would order 28 months’ imprisonment; as for the 2nd count, 24 months’ imprisonment.

10.  The court has been furnished with some background information about the defendant.  He is 41 years old and is a person who had been arrested for multiple times.  He cannot claim any credit from lack of previous record or his age. 

11.  In mitigation on his behalf, the defence counsel pointed out that the defendant had not frightened anyone, the amount of loss was small, and also the defendant had committed the offence because he was in financial difficulties. I did not see any of these factors relevant mitigating circumstances.

Totality

12.  In view of the circumstances of the case and the fact that he pleaded guilty to both counts in one go, I would order 12 months of the 2nd count to run consecutive to the 28 months of the 1st count.  In all he is to serve a total of 40 months’ imprisonment.