HKSAR v. CHU SHUE LUNG

DCCC 993/2016

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 993 OF 2016

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REASONS FOR SENTENCE

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1.  The defendant pleaded guilty to Charge 1 to Charge 3 and Charge 8 to Charge 11 and admitted to the facts. Upon the application by the prosecution, I order that Charge 4 to Charge 7 to be left on court’s file and not to be proceeded with without the leave of the court.

THE FACTS

2.  The defendant pleaded guilty to 4 charges of burglary of non-domestic premises, 2 charges of attempted burglary of non-domestic premises and one charge of going equipped for stealing.

Charge 1 to 3 and Charge 8 to 10 (Burglary and Attempted Burglary)

3.  The facts of the case were that over a five-week period from 9 July 2016 to 18 August 2016, the defendant obtained a total of HKD10,000 and RMB10,000 in cash from six various industrial and commercial buildings at locations in the New Territories, Kowloon and Hong Kong, none of which was recovered.  Most of the burglaries occurred at night when the victimized premises were empty.  The defendant was captured in the CCTV when he entered and left the subject victimized buildings.  As a result of the burglaries, the door and the roller shutter doors of the premises were damaged.  The repairing cost of the damage would be around $30,000 in total for these 6 premises.

4.  Under caution, the defendant admitted the six burglaries using a metal bar, a crowbar and a screwdriver.  He stole HKD10,000 and RMB10,000 on two of these occasions.

Charge 11 (Going equipped for stealing)

5.  On 18 August 2016, police intercepted the defendant at the ground floor of his home.  The defendant was carrying a small carton box in which an iron pipe, a screwdriver, a saw, a hammer, a chisel and 2 pairs of gloves were found.

6.  The defendant was arrested for going equipped for stealing.  Under caution the defendant admitted that he was in possession of these items for the purpose of committing a burglary.

CRIMINAL RECORDS

7.  The defendant has appeared before the court on 5 previous occasions in respect of 11 offences.  Five of those were for burglaries and one for attempted burglary and two for going equipped for stealing.  On 9 July 2016, he was released from prison.  Immediately after gaining his liberty on the very first day, he committed Charge 1.

MITIGATION AND PERSONAL CIRCUMSTANCES

8.  The defendant is 61 years old.  He received education in China.  He worked in the People Liberation Army and Security Office in China for two years.  He sneaked into Hong Kong in 1980.  

9.  With his education not recognized in Hong Kong, he worked as a message company assistant and lorry assistant for three odd years.  Then he engaged in casino business in Macau.  His first marriage lasted for 10 years and dissolved in 1997.  He has no contact with his divorced wife and son for the past ten odd years.  Now he has a co-habited girlfriend.

10.  Mr Kwong acknowledged that the starting point for a non-domestic burglary is 30 months’ imprisonment.

11.  Mr Kwong relied on the case of HKSAR v Lui Kan Chi and another HCCC139/2016, in which money and valuable objects of over $900,000 had been stolen by that defendant in nine domestic burglaries and the court is satisfied that the starting point of sentence of 7 years’ imprisonment.  Mr Kwong submitted that in the present case, although 6 separate offences were involved, the loss of property was not of the same magnitude as that in Lui Kan Chi which involved some $20,000.  Nor was there any great damage to the victimized premises.

SENTENCING CONSIDERATIONS

Charge 1 to 3 and Charge 8 to 10 (Burglary and Attempted Burglary)

12.  As rightly pointed out by Mr Kwong, the starting point for burglary of non-domestic premises is 30 months’ imprisonment: R v Wong Man CACC 372/1992.

13.  The starting point can be adjusted upwards if there are aggravating circumstances such as; (1) the offence is carefully planned and skillfully executed involving the use of heavy instrument of equipment; (2) the offence is committed by two or more people; (3) the offence targets at substantial premises and involves substantial properties; (4) the offender is a professional burglar and not just an opportunist; (5) the offender has previous convictions, particularly previous conviction of similar nature, and (6) the offender commits multiple offences: see HKSAR v Cheung Wai Kai CACC 338/2007 at §15.

14.  If the offences were committed in different premises against different victims on different dates, consecutive sentences should be imposed (see AG v Lui Kam Chi [1993] 1 HKC 215).

15.  I adopt 30 months as the starting point in each of the burglary and attempted burglary.  The defendant committed Charge 1 on the very first day he was discharged from prison.  Worst still, he burgled consecutively into three different premises in the same building on 17 August 2016 (Charge 8 to Charge 10).  The defendant is obviously a professional burglar.  I therefore enhance the sentence of 3 months to take into account this factor and another 3 months for his appalling criminal record.  Therefore, the starting point for each charge is 36 months’ imprisonment. With the guilty plea, the sentence of each charge is reduced to 24 months’ imprisonment.

Charge 11 (Going equipped for stealing)

16.  There are no guidelines for the sentencing of defendant for the offence of going equipped for stealing, for which the maximum sentence is 3 years’ imprisonment.  

17.  Having considered his previous conviction and his admission that the tools were for the commission of another burglary offence, I adopt a starting point of 30 months’ imprisonment:HKSAR v Li Ho Yin CACC 240/2012. Upon his plea, it is reduced to 20 months’ imprisonment.

TOTALITY

18.  In Secretary for Justice v Chan Tsz Lung CAAR 4/1998, the Court of Appeal on a review of sentence imposed on an applicant who had pleaded guilty to 15 counts of non-domestic burglary, held that the appropriate starting point should be five years' imprisonment.

19.  In HKSAR v Lui Cho Yiu CACC 81/2004, the defendant, who had many previous convictions including three for burglary, was convicted of two charges of burglary in which a number of burglars used drilling equipment to try to open a safe in a money exchange business.  The Court of Appeal approved a starting point of five years.

20.  In HKSAR v Cheng Wai Kai CACC 338/2007, the appellant committed, on two separate occasions, a total of five burglaries or attempted burglary.  The offences were carefully planned with the use of equipment to break open a brick wall, and substantial properties valued at over $130,000 were stolen.  The starting point of 5 years is confirmed by the Court of Appeal.

21.  In HKSAR v Fan Kit Hung CACC 62/2009, the applicant pleaded guilty to 13 charges of burglary of non-domestic premises, the Court Appeal held that a starting point of 6 years' imprisonment should be adopted.

22.  In HRSAR v Hui Yee Lung CACC 406/2011, the applicant sought leave to appeal the five years' imprisonment for his pleas of guilty to 7 charges of burglary relating to university premises.  The applicant had 28 offences of previous convictions of burglary.  On appeal, the sentence was reduced to a total sentence of 4 years.

23.  In HKSAR v Wong Yik Sun CACC 244/2015, the applicant pleaded guilty to two charges of burglary.  The judge sentenced him to 22 months’ imprisonment on each of the two charges, with 8 months of the sentence on Charge 2 being ordered to run consecutively to the sentence on Charge 1, resulting in an overall sentence of 30 months' imprisonment.  He had 10 convictions relating to dishonesty.  Macrae JA refused the leave and confirmed the sentence.

24.  I stress that the above cases can only be used as reference.  In sentencing, I have considered the whole circumstances of the present case, including its nature and facts, the proximity of time and the number of offences committed, the personal background of the defendant and mitigation put forward on his behalf.  In my view, there needed to be a significant element of personal and public deterrence in sentencing the defendant. 

25.  As these offences are separate and distinct, the terms should be ordered to run consecutively.  However, such will no doubt result in too excessive a sentence.  Therefore, having considered the totality principle, I took the view that an overall sentence of 42 months for the 7 charges is the appropriate sentence. To achieve this end, I order 3 months of the sentence for each of Charge 2, 3, 8, 9, 10 and 11 to run consecutively to the sentence of 24 months for Charge 1.  Therefore, the total term is 42 months’ imprisonment.