HKSAR v. Li Ho Yin

DCCC 935/2015

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 935 OF 2015

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Reasons for Sentence

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1.The defendant has pleaded guilty to one offence of burglary and one offence of theft. The facts have been admitted, and I have convicted him on those charges.

2.The facts briefly show that the burglary occurred on 27 May 2015 at a village house in Fanling.  The owner of the house forgot to lock the main door properly in the early hours of the morning. And then later on, at about 5.30 in the morning, it was noticed that the ground-floor sitting room had been ransacked and various items had been stolen.  They included a portable computer valued at $3,000, two rucksacks valued at $1,000, a mobile phone valued at $6,000, a charger valued at $200, a jade Qilin valued at $2,000, and also the keys. 

3.The defendant became involved when he was arrested on 27 August 2015.  He was arrested at his home which is also in Fanling.  Upon search of his residence, 20 “XBOX” motion sensors were discovered and their purchase value of $18,980, and also a jade Qilin was found on the upper bunk of a bed inside the defendant’s residence, and that was the Qilin that has been taken from the burglary.

4.The defendant admitted immediately that he acted as a lookout on 27 May when the burglary occurred at the house in Fanling.  And as far as the “XBOX” motion sensors were concerned, he found them at a location outside Sheung Shui Plaza in Sheung Shui in August.  A further video-recorded interview confirmed those admissions.

5.The owners of the “XBOX” motion sensors could not be traced, having been traced, and so it is charged and prosecuted as a theft by finding by the defendant.

6.Defendant’s antecedents have been admitted by him.  He is aged 29, educated up to Form 5 level, had a number of jobs in the past and was working as a construction site worker at the time of his arrest. He has been a consumer of drugs in the past, taking “Ice” from about 2008 onwards. 

7.He has a number of convictions which are set out in his criminal record summary, and nine items starting with possession of dangerous drugs back in 2006.  In 2007, for the same offence, he was sentenced to a drug addiction treatment centre, and again in 2009.  In 2010, there are records of three convictions for burglary, all dated 10 September 2010 for which the defendant was sentenced to sentences of imprisonment of 1 year 11 months, two of them, and 10 months of another.  Defendant has also been convicted since then of going equipped for stealing on three further occasions, receiving sentences of 20 months, 8 months and again a further 10 months in 2014.  The defendant was last discharged from prison on 2 April 2015 which is just over a month before these offences were committed.

8.As far as mitigation is concerned, the defendant prays in aid his plea of guilty.  He has made a full admission from an early stage to these matters.  So he should gain full credit for that, he says.  He says that in respect of the burglary, his involvement was as a lookout, and his reward was simply the ornament which he later kept.  The other person who he committed the burglary with took the bulk of the valuable items.  He made a full admission and also implicated his co-accused who I understand was arrested but is not prosecuted at this stage.

9.As far as the theft is concerned, he said in mitigation this is a theft by finding, and the value of goods set out and agreed in the facts at 18,980 would be the replacement of the goods as new and this would not be the actual value of the goods as in his hands given that such technology is constantly being renewed.

10.As far as sentence is concerned, the defendant has pleaded guilty to a domestic burglary and also to a theft by finding.  As far as domestic burglary is concerned, there is a guideline sentence.  As far as the theft by finding is concerned, there is no guideline sentence.  The sentences will be at large for that.

11.The guideline sentence for a domestic burglary is as follows: that a person of clear record convicted after trial of domestic burglary, the starting point for sentence should normally be one of 3 years’ imprisonment.  There can be some reductions for what are described as opportunistic burglaries. 

12.The defendant’s admission in this case is to acting as a lookout.  That is still an important part of the burglary. Furthermore, the assistance the defendant rendered to the police in implicating his co‑accused has not, it would appear, led to any trial or proceedings being taken against that person.  So the defendant has clearly shown remorse and made full admissions but it does not seem to have gone any further than that. 

13.As far as mitigating factors, it does not appear to me, having looked at them, that there is anything that need persuade me from departing from the normal guideline sentence for domestic burglary. 

14.There is, however, a clear aggravating factor in this case and that is the defendant’s previous criminal activity.  He has been convicted of this offence before back in 2010 and also for like offences of going equipped for stealing in 2012 and 2014, and it is clear that the convictions on those charges and the sentencing on those charges has not deterred in any way the defendant from committing this offence.  So it is a failure in the previous sentencing to deter the defendant.  I consider that is an aggravating factor. 

15.Taking all these factors into consideration, I shall take a starting point for sentence on the 1st charge, that is the charge of burglary, of 39 months’ imprisonment.  Defendant is entitled to a one-third reduction from that for his plea of guilty and also his assistance to the police.  That leads to a final sentence of 26 months’ imprisonment on the 1st charge. 

16.On the 3rd charge, I take on board that this is a theft by finding and they are items of value.  I consider that taking all the factors into consideration, the starting point for that should be one of 3 months’ imprisonment which shall be reduced to 2 months’ imprisonment for the defendant’s plea of guilty.

17.The offences are separate and identifiable crimes committed at different times, and I consider, having regard to the question of overall totality, those sentences should be served concurrently one to another.  This will give an overall sentence of 28 months’ imprisonment, total sentence of 28 months’ imprisonment.