HKSAR v. Leung Pak Wai

DCCC 777/2015

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 777 OF 2015

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Reasons for Sentence

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1.In these proceedings the defendant Leung Pak-wai, is charged with one count of “Burglary”, contrary to section 11(1)(b) and (4) of the Theft Ordinance, Cap 210. He is convicted upon his own plea and admission of facts.

Facts

2.Sometime at about 11 pm on 1 August 2015, the defendant was observed by a patrolling police officer to be carrying a bag and walking along Tuen Mun Heung Sze Wui Road;  stopping from time to time at the staircases of the buildings and peeking inside.

3.When he reached No 44 of the Tuen Mun Heung Sze Wui Road, after looking around he ascended the staircase.  He was seen subsequently inside a storage hut on the rooftop of the same building.  He then put some pieces of water taps and water tube into the bag he was carrying.  The police officer then made known his presence and had him arrested.

4.Inside the defendant’s bag, the police found some screwdrivers, a hammer, a cutter and three pairs of pliers.  In another bag lying on the storeroom floor, the police also found the stolen property enlisted in the charge.  They included a water tap, two water tubes, two glue guns, 10 silver hooks, four saw blades, one L-shaped metal tool, two metal pipes, two metal rings and a box containing 21 screws. 

5.Under caution, the defendant admitted to have stolen the above items for resale.  The screwdrivers, the hammer, the cutter and pliers were meant to be used as tools, but in the present case they had not been put to use since the storeroom was not locked. 

6.The owner of the stolen items was subsequently　located. He confirmed that he had placed the items there for storage and the property is valued in the region of 600 to 700 Hong Kong Dollars. 

7.The Prosecution accepts that the storeroom was not actually broken into since it was not locked. From the pictures I note that the building in question has no gate at the staircase entrance. 

Sentencing consideration

8.Burglary is a very serious offence. Both the Prosecution and the Defence agree that in the present case the place burgled into was not a domestic premises, therefore the usual starting point should be a term of imprisonment in the region of 30 months. 

9.In this case I do not see any aggravating factor.  Although the defendant brought with him some tools, there is no evidence of detailed planning.  The burglary took place in a non-domestic premises inside a residential building, but since it took place at about 11 pm when most of the people would have gone to sleep, there is very little chance of encountering any residents. 

10.In the circumstances I would therefore go with the norm and adopt 30 months as a starting point. 

Mitigation

11.The defendant is aged 58.  Through the years he has accumulated a total 23 convictions, four of which dishonesty related. However, after 23 April 2004 when he was sentenced to prison for 16 months in respect of a case of “Trafficking in a Dangerous Drug”, he managed to stay out of trouble for almost 10 years.  In 2014, he was caught in the system again when he committed a total of four offences ranging from stealing to possession of dangerous drugs.  His last conviction was on 3 November 2014 when, for a charge of “Theft”, he was fined HK$1,000.

12.From his record and his age, one cannot find any exceptional circumstances in which this court can exercise its discretion of clemency.

13.The court has further been told about his personal circumstances.  He had married twice, both ended up in divorce.  His grownup children are now living away from him and had no further contact with him.  In 2009, he had started another relationship with a new girlfriend who had given birth to a daughter now aged 6.  Sadly, his girlfriend died in 2012 and his daughter is now in a foster home.  He had been on social security at about HK$3,000 a month; his last incarceration has cut off this payment and he had to reapply.

14.The court has been told that he committed the present offence so that he could have some money to take his daughter out for tea.  These factors are not exactly valid mitigating factors. 

15.I accept that he had acted alone in this case and the properties stolen were of little value.   That only meant the absence of an aggravating factor.   In the circumstances the only valid mitigation is the fact that he pleaded guilty, and in accordance with the practice, I am going to give him one-third reduction of the sentence order.  He is now sentenced to 20 months’ imprisonment.