HKSAR v. THE CHEUNG FUNG

DCCC 475/2013

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 475 OF 2013

--------------------------

--------------------------

--------------------------

REASONS FOR SENTENCE

--------------------------

Introduction

1.  The defendant pleaded guilty to four charges of burglary, contrary to section 11(1)(b) and (4) of the Theft Ordinance, Cap 210, one charge of going equipped for stealing, contrary to section 27(1) of the Theft Ordinance and also one charge of possession of a dangerous drug, contrary to section 8(1)(a) and (2) of the Dangerous Drugs Ordinance, Cap 134. 

Facts

2.  As regards the burglaries (Charges 1 to 4), they all occurred between 25 and 27 December 2012.  The four subject premises, which involved four different victims, were all situated on the 8^th floor of an industrial building in To Kwa Wan.  The stolen properties were mainly desktop and notebook computers, although in relation to Charge 1, the defendant also stole some personal items including briefcases, cheque books, cheques, a passport and a lighter.  Whilst it is unclear exactly when each of the burglaries took place, it can be inferred from the Summary of Facts admitted by the defendant that they occurred on separate occasions on 25 and 26 and perhaps also on 27 December 2012 when the defendant interfered with the CCTV cameras installed on the 8^th floor of the building

and subsequently left “with two bags of items”[1], “a shoulder bag with a trolley full of items”[2], “with a shoulder bag, another bag of items and a paper box of items”[3] and “a shoulder bag”[4]. On 27 December 2012, the burglaries were discovered and reported to the police.

3.  As regards the going equipped for stealing (Charge 5), the defendant was arrested by plainclothes police officers in the small hours of 28 December 2012 when he returned to the same building claiming that he was going to “take something from 8/F”.  Under caution, the defendant admitted, “I have spent all my money and therefore I planned to return to burgle again”.  The police officers found in the defendant’s shoulder bag a hammer with a wooden handle of about 12 inches long.  As to this, the defendant said under caution, “I planned to burgle other units.”

4.  As to the possession of the dangerous drug (Charge 6), the defendant had at the time of the arrest on his person two transparent re-sealable plastic bags containing the subject matter of that charge.  The net weight of the narcotic was 2.60 grammes of methamphetamine hydrochloride, a dangerous drug which is commonly known as “ice”.  Under caution, the defendant admitted that the “ice” was for his own-consumption.

Mitigation

5.  The defendant is aged 33.  He has 12 previous criminal records.  Most of the previous records are drug-related offences, although there are a record of making off without payment in 1997 for which he was given a probation, a record of theft in 2001 for which he was fined $500 and another record of theft in 2003 for which he was sentenced to the Drug Addiction Treatment Centre. 

6.  Mr Li, who acts for the defendant, realistically accepted that the burglaries were committed on different occasions on different dates.  Mr Li said that the reason for the defendant having committed the present offences was financial, as the defendant was trying to raise money to meet the legal expenses of his girl friend who was then in trouble.  Mr Li said that the defendant has a supportive mother.  Mr Li asked that discount be given for the defendant’s guilty plea.  

Sentences of the burglaries

7.  It is well-established that a burglary of non-domestic premises warrants a starting point of 2½ years’ imprisonment after trial.  It is also well-established that the proper approach in relation to multiple offences of a similar nature committed at different times is for the court to award a higher sentence than if there had been only one offence: see Attorney General v Lui Kam Chi [1993] 1 HKC 215. 

8.  I note that in the present case the burglaries all took place within a few days and, as I said, the subject premises were all situated on the same floor of the same building.  It has been said that the typical case in which concurrent sentences were appropriate was where the offences arose out of the same set of facts: see Lui Shu Tong v R [1961] HKLR 129 at 136.  However, offences were not treated as part of a single criminal enterprise merely because the modus operandi of each was the same: Attorney General v Shek Wai Ip [1995] 2 HKC 368 at 371.  

9.  In the present case, I adopt 2½ years’ imprisonment as the starting point of each of the burglary charges.  After giving one-third discount for the plea, the sentence on each of these charges is 20 months’ imprisonment.

10.  I do not regard the burglaries, which were committed on separate occasions against different victims, as a single transaction, although they were connected in time and place and committed with similar modi operandi.  In my judgment, subject to totality, partly concurrent and partly consecutive sentences should be imposed.

Sentence of the going equipped charge

11.  In the recent case of HKSAR v Li Hon Yin, CACC 240/2012, the Court of Appeal (Yuen JA and Line J), applying R v Tsang Wing Ming, CACC 315/1989, says:-

“There are no guidelines for the sentencing of defendants for the offence of going equipped for stealing, for which the maximum sentence is 3 years imprisonment. However, as with all offences, the courts seek to attain some degree of consistency in sentencing subject of course to the individual facts of each case, including the circumstances in which the defendant was apprehended, the nature of the equipment carried, the nature of the defendant, his record (if any), the commission of other offences at the same time as the subject offence, and the principle of totality.”

12.  In that case, the Court of Appeal noted that “going equipped for stealing” has been said to be a crime of a “preventive” nature.  However, having reviewed a number of cases on sentencing this type of offence and following Tang Wing Ming, the Court upheld the sentence of 2½ years’ imprisonment of the appellant who was a professional burglar and who, at the time of the offence, having with him a crowbar and a pair of gloves, had advanced well past a merely preparatory or target-searching stage for theft or burglary. 

13.  In the present case, based on the agreed Summary of Facts, the defendant was in possession of a hammer and he returned to the same building which he had burgled shortly before.  I note that there is nothing in the Summary of Facts to suggest that the hammer had been used in the burglaries the subject matters of Charges 1 to 4.  The defendant does not have any previous conviction for burglary.  It does not appear that he was a professional burglar.  The Summary of Facts suggests that the defendant was still in the target-searching stage for burglary immediately before the arrest.  In the circumstances, I adopt 12 months’ imprisonment as the starting point.  After giving one-third discount for the plea, the sentence is 8 months’ imprisonment.

Sentence for the possession charge

14.  In HKSAR v Mok Cho Tik [2001] 1 HKC 261 at 267, the Court of Appeal, confirming earlier decisions to the same effect, indicated that an appropriate starting point for the mere possession of a quantity of ‘ice’ which a genuine user would normally have in his possession should be “in the range of 12 to 18 months”.  This particularly applies in cases at High Court and District Court level.  In that case, the quantity of ‘ice’ was 15.724 grammes and the starting point adopted was 18 months’ imprisonment before the enhancement for the latent risk factor (in regard to the risk that a proportion of the drugs might find their way into the hands of other users). 

15.  In the present case, I adopt 12 months’ imprisonment as the starting point.  After giving one-third discount for the plea, the sentence is 8 months’ imprisonment.  In view of the small quantities of the dangerous drug and the circumstances of the present case, I do not think that there was a latent risk and I do not enhance the sentence of the possession charge. 

Overall sentence

16.  Having regard to totality, in relation to Charges 1 to 4 (burglaries), I order that three months each from the sentences of Charges 2, 3 and 4 shall run consecutively to each other and also to the sentence of Charge 1, thus making a total sentence of 29 months.

17.  As regards Charge 5 (going equipped for stealing), I order that 3 months of the sentence shall be served consecutively to the sentences of Charges 1 to 4.

18.  As regards Charge 6 (possession of a dangerous drug), which is of an entirely different nature unconnected with the other offences, I order that the whole of the eight months shall be served consecutively to the sentences of Charges 1 to 5.

19.  Therefore, the overall sentence of the defendant is 40 months imprisonment, a sentence which I am satisfied properly reflects the defendant’s criminality on all the six charges.