HKSAR v. LUI YUEN SHUN

DCCC 311/2016

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 311 OF 2016

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Reasons for Sentence

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1.  The defendant has pleaded guilty to two charges of burglary. Both burglaries are of domestic premises. They used a similar modus operandi where the defendant obtains access to the home of elderly persons by false pretences and then steals from them.

2.  The defendant is also a long-term offender.  He has at least seven previous convictions for burglary which include a sentence of 48 months' imprisonment for two burglaries using the same modus operandi in the year 2005. 

3.  The facts are agreed.  They show the first burglary occurred on 7 October 2015 in the morning, about 9.15 am on that day. The victim, Mr Lee, who is aged 76 was inside his flat at the time.  The defendant pressed the doorbell, the door was answered.  The defendant then falsely claimed he as a neighbour who lived upstairs and asked to enter the victim's property purportedly to look for clothes that had been dropped to the outer walls.  Mr Lee allowed the defendant to enter his flat.  The defendant asked Mr Lee to lend him a $100 to make spare keys which he did so.  The defendant left shortly after and it was found after he departed that Mr Lee's wallet had been taken which contained his Identity Card, Visa Permit, Senior Citizens Card and cash of $7,000. 

4.  The 2nd charge occurred on 23 October 2015 around 9.40 in the morning.  Ms Fu lived at the premises, she is aged 82.  The defendant again pressed the doorbell, the door was opened and the defendant falsely claimed he was performing a building inspection.  He entered the flat, he also claimed he had dropped his key outside and he asked for money from Ms Fu to pay a locksmith.  She had no money so could not give him any.  The defendant left but it was found that Ms Fu's granddaughter's mobile phone with phone case was missing from a desk inside the sitting room. 

5.  The defendant was identified from CCTV footage from cameras in the estates where the burglaries had taken place.  He was also positively identified at identification parades. 

6.  As far as the defendant's background is concerned, he is 41 years old, a Hong Kong resident and is divorced with one daughter.  His criminal record shows that he has a total of 33 previous convictions, 26 of which are for theft, 7 for burglary.  The first burglary conviction was in 1996 when he was sent to a Drug Addiction Treatment Centre. In 1997, he received a sentence of imprisonment of 2½ years and in 2002 a further sentence of 2 years for burglary. In 2006 he received a total of 48 months' imprisonment for two burglaries. Since then the defendant has no further convictions of burglary until this offence.  He has continued offending and has been sent to prison on numerous occasions, the most recent of which was on 7 March 2016 for 6 months' imprisonment for an offence of obtaining property by deception.  That offence was in fact committed on 7 November 2015 and again in that offence the defendant knocked on the victim's door purporting to be a neighbour living in the building saying he had lost his keys and asking for money to hire a locksmith and the defendant was charged in respect of the money that had been obtained.  It shows a similar modus operandi although nothing was taken from the other premises.

7.  Now the approach to sentencing: this case involves two domestic premises burglaries.  The normal starting point for a person of clear record after trial for a domestic premises burglary is 36 months' imprisonment.  The defendant is not of clear record so he can expect some enhancement of the starting point for sentence due to his recidivism.  I note that when the defendant was sentenced in 2006 for the two offences of burglary the Judge in that case on each charge adopted an enhanced starting point of 45 months' imprisonment which was reduced to 30 months' imprisonment for his plea of guilty and that would represent a 9 month enhancement of his sentence and that is to reflect the poor record.

8.  When one looks at these burglaries it is clear that the previous sentences for both offences of theft and for burglary have not deterred the defendant from committing these offences and so the defendant can expect a further enhancement of the starting point in respect of these two charges. 

9.  I have considered this matter and consider that a further enhancement to 48 months' imprisonment would reflect the correct starting point for each of these charges.  With the benefit of a one-third discount, that would lead to a sentence of 32 months' imprisonment on each charge.

10.  I must consider the effect of totality on these figures.  The sentences could be served consecutively one to another and also consecutively to the sentence which the defendant is at present serving. However, I must consider what the correct overall totality should be.  I must also bear in mind that the sentences which the defendant received on 7 March 2016, the offence was committed on 7 November 2015 which is at about the time of these offences and would form part of the overall criminality the defendant was involved in October to early November 2015.  The way in which I shall resolve this issue is as follows:-

11.  Some part of the 2nd charge must of course be served consecutively to the 1st charge.  I will order that 20 months of the 2nd charge be served consecutively to the 1st charge totally 52 months Imprisonment.  That will give the equivalent starting point of 78 months' imprisonment for both offences.  Having regard to the overall totals, I will order that this sentence be served concurrently to the sentence which the defendant is currently serving.