HKSAR v. WAI TUNG also known as LEE WAI

DCCC1001/2010

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 1001 OF 2010

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Reasons for Sentence

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1.  Defendant, I convicted you after trial of a charge of burglary, contrary to section 11(1)(b) and (4) of the Theft Ordinance.

2.  I found that on 8 March 2010 in Hong Kong you, having entered as a trespasser part of a building known as Block I, Yuen Long Villa, No. 260 Ma Tin Tsuen, Yuen Long, New Territories, stole therein 3 cameras, 3 camera lens and one flash light.

3.  Briefly, the facts are as follows.  On the early morning at about 3 am on 8 March the occupant owner, PW1, heard some noise at about 3 am.  He heard the sound of the blinds behind the glass doors of the balcony next to his bedroom making a noise.  He suspected that somebody was breaking into his house and coming in through the balcony by the glass doors.  He then placed his ear on the door of his bedroom so that he could listen to any noises coming from outside.  He heard rustling noises and noises of ransacking or searching, opening and shutting of doors.  He heard noise from the other room next to his bedroom where he had put the cameras and stolen property. 

4.  After listening for about 2 minutes and hearing footsteps leading down from the 2nd floor to the downstairs, he did not hear any more noise.  As he was afraid because he thought a thief was out there, he did not go outside to check.  The following morning he woke up and found that the three cameras, the three camera lens and a flash light valued at $50,000 were missing.  

5.  Later that evening at about 6 pm, he made a report at Yuen Long Police Station.  The same evening the police went to his house and lifted fingerprints from the balcony railing on the 2nd floor.  The fingerprint found on the balcony railing impression was found to be your fingerprint. 

6.  You had denied ever being to this house and/or to Yuen Long and said that on the date and time in question you were in China admitted into hospital.  I rejected your evidence as untruthful and found the overwhelming evidence that your fingerprint being found at the balcony in this house was evident that you had been to this house, contrary to what your defence was and that you were the person who had burgled PW1’s house that night. 

7.  Mr Chan Pak-kong, your counsel, has mitigated on your behalf today.  I have taken into account all that he has had to say for you.

8.  You are aged 32 and have appeared in court on five separate occasions.  On those five occasions there were 9 previous convictions.  Five of those convictions were for remaining in Hong Kong illegally and the remainder were for theft, resisting a police officer, robbery and possession of an offensive weapon.  You therefore have two similar offences relating to dishonesty. 

9.  Mr Chan has mitigated on your behalf today saying that you have already served your sentence for illegal remaining in Hong Kong to which you were sentenced on 4 May 2010 for 16 months.  He asks me to be lenient on you for this offence on the basis that you have already served your last sentence of imprisonment and to take the principle of totality into account.

10.  On that basis I say this, firstly, this offence that I have now convicted you was first or prior in time to your conviction to which you were sentenced in May of last year of illegal remaining in Hong Kong.  Secondly, if, as Mr Chan has submitted, you were sentenced for this offence and your unlawful remaining offence at the same time, despite what Mr Chan has said, the sentences would have been consecutive sentence to each other and not concurrent. This is a very clear sentencing principle laid down by the Court of Appeal for many, many years. 

11.  Mr Chan however rightly pointed out the tariff for burglary of domestic premises.  Save for a very, very brief mitigation that the court be lenient, Mr Chan has said nothing further to assist in your mitigation. 

12.  Rightly, burglary for domestic premises, a tariff sentence of 3 years’ imprisonment is appropriate after trial.  This burglary was however committed in the early hours of the morning, at the time when the house was occupied and anyone would clearly have expected it to have been so occupied.  The owner, PW1, had in fact been woken up by the noise in the middle of the night, heard the noises of ransacking and admitted he was too scared to go and see what was happening.  He called his mother who lived in the same house to make sure she had locked her door.  When he woke up, he found that the cameras and the other equipment were stolen. 

13.  In the case of HKSAR v Tong Fuk Sing CACC216/1999, Stuart-Moore, VP, as he then was, said that when there are these factors involved, these are aggravating factors of burglary.  In that case the case of Wong Ting Wah was also cited where the court considered the positions where pleas of guilty had been entered to a burglary on a house in the New Territories committed by a man who was unlawfully in Hong Kong.  The court there reiterated the principle that the sentences should be consecutive if the defendant was charged with unlawful remaining in Hong Kong.  The court noted there, and I quote:

“We have observed on a number of occasions in the past that householders, particularly those who reside in the New Territories, are entitled to retire in the evening with a feeling that their house and their property therein is safe from the sort of depredation that persons such as the applicant are committing. It would be wrong for the court to exercise leniency in relation to offences of this type. It would be a failure to give what protection the courts can give to the residents of Hong Kong.”

14.  Defendant at the material time you were unlawfully in Hong Kong when you committed this burglary.  You had burgled a house in the New Territories in the early hours of the morning.  You would clearly have expected the house to have been occupied.  In this case PW1 was clearly frightened by your presence.  I find those factors to be aggravating factors such that the usual starting point of 3 years should be increased. 

15.  In those circumstances, defendant, you are sentenced to 3 years and 2 months’ imprisonment.