HKSAR v. Ling Kin Fai

DCCC 372/1990

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 372 OF 1990

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Reasons for Sentence

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1.The defendant has pleaded guilty to three offences of burglary committed in April of 1990. These burglaries occurred on 10 April 1990, that is the 1st charge; and on 2 April 1990; that is the 2nd and 3rd charges.

2.The burglaries were all at residential premises in Portland Street, Mong Kok.

3.The first in time, being on 2 April, was at a residential premises at 331-5 Portland Street on the third burglary, in fact, which is the first charged, on 10 April 1990 at 211 Portland Street.

4.As far as the first burglary is concerned - that is, the burglary on 10 April 1990 - this was discovered when a neighbour saw the defendant and another man trying to prise open the flat door of a neighbouring flat.  This neighbour reported to the watchman, who reported to the police.  The police saw the defendant and the other man who was involved in the burglary leaving the flat.

5.The defendant was seen to discard a crowbar and then left by running upstairs.  Eventually, when there was a search of the whole building, the defendant was discovered.

6.Under caution he admitted that he burgled the flat with another man and they had found nothing to steal, and when they were leaving, they had seen the police.  He also admitted to entering residential premises in another building in Portland Street.  These formed the premises in the 2nd and 3rd charges.  They were both empty at the time, and nothing was in fact taken from them.

7.The defendant’s antecedents have been admitted. He is now aged, I am told, 53.  He has one previous conviction back in 1988 for burglary when he was sentenced to 16 months’ imprisonment.  That is sufficiently long ago now to be no longer an aggravating factor for these burglaries.

8.The defendant had absconded to Macau, I understand, and has had a family there and has two children, one currently at university, and the other one working as a security guard.  The defendant has been absent from these proceedings for 25 years.

9.As far as the sentence is concerned, I have been asked for leniency.  Clearly these offences were committed a long time ago, and when the defendant committed them he was in the company of a co‑defendant. That co‑defendant was sentenced on 5 October 1990.  That defendant had pleaded guilty to five offences of burglary, the first three of which were the three offences with which we are concerned.  He committed them together with this defendant.

10.What I know about the sentencing on that occasion is that on each charge the co‑defendant was sentenced to 9 months’ imprisonment.  That defendant was a man of clear record.  In respect of those sentences, the sentences on the 2nd and 3rd charges were ordered to run concurrently, but consecutively to the sentence on the 1st charge.

11.This defendant’s overall sentence was 2 years and 9 months’ imprisonment for the five burglaries, but for these three burglaries, it would have been 18 months’ imprisonment.

12.This sentence imposed in 1990 was delivered before there was clear guideline sentencing for residential burglaries.  The guideline sentences for burglary were not fully formed until about 2004, some 14 years later.

13.I must also bear in mind in sentencing this defendant that the court should avoid any large disparities in the sentences of co‑defendants.

14.Clearly of significance in this case is that the defendant has not pleaded guilty at the earliest or an early opportunity.  By absconding in 1990, he has let 25 years elapse.

15.In cases involving shorter periods of absence from the proceedings, the normal 30 per cent reduction of sentence has been reduced to 25 per cent.  The authorities I have been referred to involve much shorter periods of departure or absence from the court than the one in this case.

16.I consider that the correct approach to sentencing in this case is to bear in mind the sentencing approach of the judge who sentenced the original co‑defendant.  This is so as not to create the unfairness of a notable disparity of sentence between the two defendants.

17.The starting point for sentence of imprisonment determined by the original judge in 1990 is obviously less than the guideline sentence that would be operative today.  The starting point for a residential premises burglary today would be 36 months’ imprisonment, and that may well be aggravated by the fact that the burglaries were not committed alone but in concert with another person.  Nevertheless, it would not be the correct approach to deal with these particular offences.

18.The starting point adopted by the judge in 1990 would have been around 13½ months’ imprisonment.  I will work with that earlier starting point.

19.I have noted the defendant has been absent for a considerable period and has not entered an early plea.  Therefore, the deduction he could expect for his plea of guilty would be less than that that could have been expected by a person who had entered a plea at the appropriate time.

20.I consider the deduction for the defendant should be in the region of 20 per cent.  Following that deduction from the original starting point, that would lead to a sentence of 11 months’ imprisonment for each charge.

21.Again, the judge in the previous proceedings adopted an approach to overall totality which reflected that the first offence and the second and third offences were committed on separate occasions, and I will reflect that again in my sentencing.

22.I will order that the sentences on the 2nd and 3rd charges be served concurrently to one another, but consecutively to that on the 1st charge.

23.This leads to an overall sentence of imprisonment for these offences of 22 months’ imprisonment.