HKSAR v. HUI YEE LUNG

DCCC 169/2024

[2024] HKDC 2190

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 169 OF 2024

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REASONS FOR SENTENCE

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1.  The defendant has pleaded guilty to one charge of theft and four further charges of burglary. The charges of burglary are of what I would describe as a “walk in” type and were committed over an eight-day period. The facts that the prosecution rely on are set out in the Admitted Facts and are generally as follows.

2.  The 1^st offence, charged as a theft, occurred on 10 July 2023 at a location in Argyle Street in Mong Kok which is a guesthouse and the victim was the person in charge of that guesthouse and the defendant was employed at that location as a part-time cleaner.  What was taken from that guesthouse was a total of $40,000 in cash that had been left in two handbags at the location. The defendant was again identified from CCTV as entering the room where the items had been kept.

3.  The 2^nd offence to which the defendant has pleaded guilty, occurred on 23 July 2023 at locations in the Queen Elizabeth Stadium and in fact a total of, I think it is three people, lost items on that occasion including seven credit cards, a laptop computer, Octopus card and some nine red packets, containing a total of $210 in currency.  Defendant was seen to have entered the lobby of that building on 23 July 2023.

4.  The 3^rd charge involves a burglary that occurred at the Grace Lutheran Church in Tsuen Wan where PW5, the victim in that charge, left a wallet in a drawer and that was taken and the items taken were an ID card, two Octopus cards, a credit card, some cash, keys and a coin bag.  The defendant again was identified from CCTV footage.  There are a number of unauthorised transactions took place on the credit card valued at some $5,368.50 and also unauthorised transactions on the Octopus card, the total amount being $961.20, and another five unauthorised transactions on another Octopus card, $615.70.

5.  The 4^th charge to which the defendant pleaded guilty occurred at St Teresa’s Church in Prince Edward West, where a total of four laptops which are valued at $22,000 were taken.

6.  The 6^th charge, the final charge to which the defendant has pleaded guilty, occurred at the Caritas Institute Community Education Institute in Yau Ma Tei on 1 August 2023, and some $5,000 cash was put into a drawer and that was taken by the defendant.  Again, footage revealed the defendant entering the location on 2 August 2023.

7.  Defendant was finally arrested on 5 August 2023 and made various admissions to all the offences eventually, under caution.  It appears the defendant had sold off the laptops, taken the cash and spent it and also used the credit cards and Octopus cards for general expenses incurred by him.

8.  Turning to the defendant’s antecedents, he is currently in the antecedents 47 years old, received secondary education to Form 2 in Hong Kong, was unemployed when he was arrested.  He lived alone in a premises in Jordan Road in Kowloon.

9.  He has a number of previous convictions dating back to 1992, some 11 court appearances, the last being before today in 2011.  The defendant had a number of convictions for burglary and theft and has been sentenced to Detention Centre, Training Centre and increasingly lengthy periods of imprisonment.  His antecedents say that his last sentence when he was in prison was on 26 September 2011 when he was sentenced to a total of 26 months for burglary offences and discharged on 1 November 2014, so there has been a significant period where the defendant has not been convicted of any offences or on the face of it committed any offences.

10.  I will deal with the question of the appropriate approach to sentence. The sentence inevitably will be a sentence of imprisonment for the defendant and he understands that and is aware of that from his previous record.  There is a guideline sentence in respect of the four offences of burglary.  There is no guideline sentence in respect of the theft that the defendant has occurred but I have been referred to cases such as HKSAR v Ngo Van Huy [2005] 2 HKRD 1, which was a guideline sentence for pickpocketing and these offences such as the defendant has committed in respect of Charge 1 have been treated similarly to pickpocket offences, where a sentence of imprisonment can range between 12 to 15 months’ imprisonment, subject to there not being any other aggravating factors.

11.  For the burglaries, they are all non-domestic premises burglary.  For non-domestic premises burglary, the starting point for sentence for a person of clear record after trial with no aggravating features will be one of 30 months' imprisonment.

12.  In respect of burglaries, there can be a number of aggravating factors that can exist.  I do not propose to list them but what I will say is there appears to be aggravating factor in the sense these are a series of offences and also the fact that the defendant has previous convictions for similar offences, albeit some time ago, but it is still an aggravating factor in this case.

13.  Having regard to those authorities and also the factual background of this case, I take my starting point for sentence on the individual charges as follows:

14.  In respect of the 1^st charge, I take a starting point for sentence of 18 months’ imprisonment.  That would be reduced to 12 months’ imprisonment having regard to the defendant’s plea of guilty.

15.  On the other charges, the charges of burglary, there is an aggravating factor as I have set out already.  That would enhance the starting point for sentence on each of the burglaries to a starting point of 36 months’ imprisonment. I would reduce that then, following the defendant’s plea of guilty, to one of 24 months’ imprisonment.

16.  So on Charge 1, the sentence would be one of 12 months’ imprisonment. On Charges 2, 3, 4 and 6, a sentence of 24 months’ imprisonment on each of those.

17.  Of course one must consider the overall totality of sentence in this case.  A series of offences, similar nature, committed over a fairly short period of time, the burglaries are serious offences.  I take an overall starting point for this series of offences at 4½ years’ imprisonment, which after a plea of guilty would be reduced to a sentence of 36 months or 3 years’ imprisonment.

18.  I will achieve that sentence as follows.  I will simply order that the sentences on Charges 2, 3, 4 and 6 be served concurrently to each other but consecutively to that of Charge 1, which leads to a final sentence of 36 months’ imprisonment.