HKSAR v. Ling Sun Yat Mun also known as Tam Wing Cheung

DCCC 976/2015

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 976 OF 2015

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Reasons for Sentence

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1.The defendant has pleaded guilty to nine charges of burglary and one of an attempted burglary.

2.These occurred between 12 June 2015 and 17 September 2015.  The offences came to light as the result of the detection of the offence in Charge 8, which occurred on 12 September 2015, when a burglary occurred at a flat in To Kwa Wan where a handbag was stolen which contained bank cards and cash.

3.The CCTV footage of the building captured the defendant entering and leaving the building at the relevant time.  The police then went to the defendant’s residence in a hostel on 17 September.  They kept the defendant under observation.

4.Their observations later led to the detection of Charges 9 and 10.  They saw the defendant enter a building known as Fu Shun House, and later, at Chui Yuen House.

5.After being intercepted by the police, the defendant admitted that he had entered Fu Shun House to steal, and also that he entered Chui Yuen House and tried to open the door to Room 648, but failed, as the lock was secured. 

6.Subsequently, the defendant went on to admit committing the burglary in Charge 8, and also admitting to the burglaries that have been charged as numbers 1 to 7.  All these burglaries and the attempted burglaries involved attempts to enter residential premises.  They follow a common modus operandi.  They occurred during the day.  The defendant would follow residents into the building to gain access to it.  He would push on the doors to see if the premises were unlocked, and then he would enter the unlocked premises.

7.He appears to have had no weapon or equipment with which to commit the burglaries.  They were done so that the victims would be unaware of his presence in the flat.  There was no damage to the premises, and he stole small items of value.  The total cash value taken is $15,580.  He was what I think could be possibly described as a “sneak” thief; clearly a professional offender, but an opportunistic form of professional offender.  The offences were committed on his own; he did it alone.

8.As far as the defendant’s antecedents are concerned, he is aged 48 years old.  He is single.  He was living in the premises where he was arrested at the time in Tsuen Wan.  His antecedents statement shows he was released from prison on 3 June 2015, so the first of these offences was committed very shortly after he had left prison.

9.The defendant has a number of previous convictions.  There are 14 occasions when he has been to court, and I am told there are a number of burglary convictions dating back as far as 1982, when he was placed on probation, then resuming again in 1992, when he was sentenced to 18 months’ imprisonment for attempted burglary.  The defendant has since then been convicted fairly regularly of burglary, offences such as going equipped for stealing, and loitering, and most recently has been convicted in 2013, for which he was obviously released in June of 2015.

10.The defendant’s record for burglary is poor.  He clearly has committed burglary for a long time, many, many years, and it would appear to be his method of supporting himself.

11.The defendant’s mitigation is that defence counsel says quite clearly this is the tenth sentence of imprisonment he is going to serve as a result of these offences.  When he was released from prison in June of 2015 he had nowhere to live and was sleeping on the street. He committed the offences in order to pay for temporary quarters, the room that he had in the guesthouse.  He evinces an intention to turn over a new leaf.  He asks for leniency.

12.The defendant does not appear to have a triad background or any drug addiction.  As far as mitigation is concerned, it is pointed out that the aggravating factors relate to his career as a burglar and the multiplicity of his offences.

13.Taking into consideration the approach to sentencing, the usual starting point for a burglary of a residential premises is 3 years’ imprisonment on a plea of guilty by a person of clear record.  This starting point for sentence can be

adjusted upwards in the presence of various aggravating factors.

14.The relevant factors in this case would appear to be, firstly, that the offender, the defendant, is a professional burglar.  The defendant has previous convictions of a similar nature.  That is slightly different from the previous factor in that it shows that the previous sentences have failed to deter the defendant from this course of action.  Not only does the defendant have previous convictions of a similar nature, but the defendant has committed multiple offences.

15.I note in the case of HKSAR v Fan Kit Hung CACC 62/2009 the Court of Appeal approved an overall starting point of 6 years’ imprisonment for multiple offences of burglary committed by a professional burglar.  Fan differed slightly from this case in that the amount of money stolen in that case was considerably larger than in this case, but on the other side, the offender himself did not have a poor criminal record.

16.Taking these factors into account, I will approach sentencing as follows.  All the offences are alike, save that the last offence is an attempt, rather than a completed offence.  I consider the same starting point for sentence is appropriate on each charge.  The nominal starting point for sentence for the burglary of residential premises is 3 years absent aggravating factors.  As far as this case is concerned, there are aggravating factors.  They have a similarity in that the defendant is a professional offender, has committed multiple offences, and is a repeat offender as well.

17.I consider that those aggravating factors, taken together, should increase the starting point to one of 4 years’ imprisonment on each charge.

18.The defendant is entitled to a one-third deduction from that, which leads to a sentence, expressed in months, of 32 months’ imprisonment on each charge.

19.It is necessary to determine the overall totality, because the offences are committed separately and could be served consecutively.  However, the preferable approach is to determine what is the overall appropriate total sentence for this matter, having regard to all the factors I have outlined.

20.I consider that the overall starting point for this series of offences would be one in the region of 6 years’ imprisonment, which would be reduced by a plea of guilty to one of 4 years’ imprisonment, so I consider the overall sentence for all these offences should be one of 4 years’ imprisonment, or 48 months.

21.I shall achieve that as follows.  I shall order that the sentences on Charges 1 to 7 be served concurrently to each other and the sentences on Charges 8, 9 and 10 also be served concurrently to each other, but 16 months of those to be served consecutively to the sentences on Charges 1 to 7.

22.This leads to an overall total of 48 months’ imprisonment, and that will be the sentence of the court.