HKSAR v. LAU MAN TO

DCCC 872/2010

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 872 OF 2010

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REASONS FOR SENTENCE

1.  The defendant pleads guilty to one charge of burglary of domestic premises, contrary to section 11(1)(a) and (4) of the Theft Ordinance, Chapter 210 (charge 1); one charge of knowingly misleading a police officer, contrary to section 64(b) of the Police Force Ordinance, Chapter 232 (charge 2); and two charges of theft, contrary to section 9 of the Theft Ordinance (charges 3 & 4).

2.  Full particulars of the offences are set out in the summary of facts admitted by the defendant. The following is a brief summary of the facts of each charge, all of which were connected.

3.  At about 08:15 hours on the 10th May this year Mr Ho Sum-chiu, who was living at Room C, Front Block, 1/F, 95 Chung On Street, Tsuen Wan, left home. At 09:00 the defendant, who at the time was living at Room D, used a screwdriver to unlock the door of his neighbour. The defendant took away a Bank of China passbook from the bedroom (charge 1).

4.  The defendant then went to the Tsuen Wan police station. Pretending to be Mr Ho the defendant claimed he had lost his identity card (charge 2). The defendant was issued with a Loss Memo, which he then took to a branch of the Bank of China in Tsuen Wan and withdrew HK$9,600 in the morning and $17,400 in the afternoon (charges 3 & 4). The defendant then returned to Room C and put the bank passbook back in the bedroom.

5.  Earlier on the 7th May Mr Ho had deposited in the bank account a cheque for HK$17, 411. When he used his ATM card to withdraw the money on the evening of the 10th May the card was retained by the machine. Mr Ho returned home to check his passbook. Unaware his home had been burgled Mr Ho by looking in the passbook discovered that the money had already been withdrawn earlier in the day.

6.  The next day the bank confirmed the money had been withdrawn when the bank passbook and Loss Memo were produced. Mr Ho was shown the bank CCTV and identified the defendant as the person who withdrew the money. The defendant was arrested and admitted committing the offences because he was in debt.

7.  The correct starting point for a single burglary of domestic premises committed by a first offender of full age where there are no aggravating or mitigating features is three years imprisonment (see Attorney General v LUI Kam-chi [1993] 1 HKC 215 as applied in Attorney General v LO Ching-fai [1996] 2 HKCLR 20).

8.  I have carefully considered the circumstances of the burglary. By going to the police station and pretending to be Mr Ho, so he could steal Mr Ho’s money, and then in an attempt to cover up his crime putting back the bank passbook, one may argue this should attract a higher starting point. This shows a degree of planning and cunning, which would perhaps indicate a person with criminal experience.

9.  That is not however the case, the defendant having never been in trouble before. The background report speaks well of the defendant, who has regularly contributed to his family and has no vices such as gambling or drugs. Due to a period of unemployment between mid 2008 and mid 2009 the defendant had to borrow money from friends and relatives to provide for his family’s needs. I note from the defendant’s letter he was led to crime after losing his job. Pressed for repayment the defendant resorted to crime. I accept the defendant has remorse for his crimes.

10.  I have carefully considered everything said on behalf of the defendant by Miss Lin, including the defendant has a young family to look after. The family is always the one to suffer. However I note from the background report the children are living with the defendant’s wife and mother and are therefore well looked after.

11.  In deciding the appropriate starting point I bear in mind all that said by the Court of Appeal inHKSAR v LEUNG Pui-shan CACC 317/2007 of the need for individual justice. In all the circumstances I am satisfied the appropriate starting point for the burglary is three years imprisonment; for knowingly misleading a police officer three months imprisonment and six months imprisonment on each of the theft charges. Taking into account all the offences are related, being a series of acts, I accept Miss Lin’s submission that concurrent sentences are appropriate.

12.  The bank having compensated Mr Ho has suffered the loss of $27,000. The defendant and his family are unable to repay the bank and do not consent to the bail money being taken as compensation. The defendant does however agree to the monies found in his possession on arrest, some $3,000, being paid to the bank. Accordingly I make an order in terms of the written application for disposal of exhibits. Although this is a very small sum the defendant is given credit for agreeing to this sum being paid to the bank. This is reflected by reducing the sentence on the burglary charge by one month.

13.  Giving the defendant full credit for his pleas of guilty he is sentenced as follows:

Charge 1 – 1 year and 11months imprisonment;

Charge 2 – 2 months imprisonment concurrent to charge 1

Charge 3 – 4 months imprisonment concurrent to charges 1 & 2; and

Charge 4 – 4 months imprisonment concurrent to charges 1, 2 & 3