HKSAR v. Wong Yue Tat, Sky

DCCC 102/2015

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 102 OF 2015

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Reasons for Sentence

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1.The defendant is to be sentenced in respect of three matters today. It is the burglary charge in which he has just been convicted; 2nd charge, failing to surrender to custody without reasonable cause to which he pleaded guilty at the outset of the trial; and thirdly; his conviction for both of those offences in fact put him in breach of the third matter on his criminal record which is a suspended sentence imposed for criminal damage on 21 May 2013 where the suspension was for 15 months, and certainly convictions in respect of both these offences would be in breach of that suspension period.

2.As far as the facts relied on are concerned, the 1st charge, the facts are already set out in the judgment I have given and I do not propose to rehearse them now.

3.As far as the 2nd charge is concerned, the relevant facts are that the defendant appeared before the District Court on 3 March 2015 and was granted bail.  He failed to attend the session on 31 March 2015 in accordance with his bail.  An arrest warrant was issued and he was finally arrested on 7 December 2015, without explanation and was accordingly, as it were, on the run for a period of about nine months before the matter could be dealt with.

4.As far as the criminal damage charge is concerned, all I know about that is the date of sentence was 21 May 2013, he was sentenced to 2 months, suspended for 15 months.  There was a compensation order of $2,500.

5.As far as the factors to be considered in the 1st charge are concerned, the premises in question I think can be correctly categorised as a non-domestic premises, commercial premises, and that would, having regard to the guidelines for sentencing be a starting point for sentence of 30 months’ imprisonment.

6.Mr Whitehouse refers to certain factors he considers may well be mitigating factors he says in this case.  The fact there is entry through an unlocked door effectively, and the box itself which the monies were taken was not locked.  And the other factor he prays in aid is that the amount of money that has been taken cannot be quantified in this case.  But certainly it would appear that the defendant brought what must have been some of the money back into the premises after it had been taken, and we do know from PW1 that the contents of the two bags would have been a considerable amount of money in the hundreds of thousands.  And we are dealing now with a “sum of money”, so he said there is mitigation in those factors. 

7.Of course in respect of the 1st charge, there is also the potential aggravating factor, the fact that the defendant was relying on inside knowledge to access the premises and also he acted in concert with another person. 

8.I turn to the defendant’s antecedents.  He is only aged 26.  We know he has worked as a vegetable store worker and also a transportation worker.

9.He has a criminal record which is largely as a result of a conviction of possession of dangerous drugs in 2010 which he has already told the court about and where he was placed on probation in 2010, breach of probation order through his continuing addiction to drugs and was sent to a drug addiction treatment centre pursuant to that conviction where he spent some time.  And since then there was the suspended sentence for the offence of criminal damage in 2013.  I think it is what one could describe as a light criminal record, and there is no aggravation in that.

10.My approach to sentencing is as follows.  On the 1st charge, I have considered both the factors of aggravation and the factors of mitigation, and I consider to a certain extent they rather balance themselves out.  What I shall do I shall not depart from the guideline sentence, I will simply impose a sentence of 30 months’ imprisonment for that offence.

11.On the 2nd charge, the defendant was not available for trial for quite a considerable period.  But what I shall do is take a starting point of 3 months’ imprisonment on that charge and reduce that to 2 months’ imprisonment for the defendant’s plea of guilty. 

12.On the 3rd charge, I shall bring into effect the 2 months’ suspended sentence having regard that it should be activated as follows.

13.I will also take into account the overall totality because the sentences can potentially be served consecutively.  What I shall order is having regard to the overall totality is that the second and third sentences on the second and third matters which is the 2 months for the 2nd charge and the 2 months for the activation of suspended sentence, they should be served concurrently to each other, but consecutively to the 1st charge.  That leaves a sentence, overall sentence of 32 months’ imprisonment for these offences.