HKSAR v. Lin Kee Shing

DCCC 219/2016

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 219 OF 2016

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Reasons for Sentence

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1.The defendant entered pleas of guilty to one charge of burglary and one charge of failing to surrender to custody without reasonable excuse.

2.On the basis of facts admitted by the defendant, I convictions to both those charges.

3.The burglary charge relates to what is described as a domestic flat at 93 Waterloo Road in Mong Kok.  The owner of the flat was not residing in the flat and had not been residing in that flat since 2005, but returned since almost every day.  It was maintained and occupied with property kept inside; it was not abandoned or vacant.

4.The property had been locked; windows, gates and doors secured in the evening of 25 December 2014.  On 27 December it was found that a window had been prised open and that a Chinese painting valued at about $3,000, which had hung on the wall of the sitting room, was missing.  There were signs that the flat had been ransacked.

5.Fingerprints were lifted from a piece of glass that covered the painting and they were found to match with the defendant.

6.The defendant in a video recorded interview said that he had been to the flat before and he had entered alone at night.  He admitted pulling open the window of the flat, climbed in at about midnight to see if there was anything to steal and had stolen a painting on the wall, which he sold in Sham Shui Po.

7.As far as the third charge is concerned, the defendant was admitted to bail by the Kowloon City Magistrate in order to attend court on 13 April 2015.  He failed to attend court on 13 April 2015 and was described as jumping bail.  He was at large until 1 February 2016, when he was arrested during a stop-and-search enquiry, so he would have been on the run for a period of about nine months.

8.The defendant’s antecedents have been admitted. He is aged 43, Secondary 1 education in Hong Kong, has been working as a plumbing repair worker.  He is single. 

9.He has a number of previous convictions dating back to 1986.  There are in total seven previous appearances in court: offences such as robbery and trafficking in dangerous drugs, for which he was sent to a Drug Addiction Treatment Centre.  There was a substantial period of imprisonment, a period of over 5 years in 1987, for trafficking in a dangerous drug.  The last occasion was for the same offence of burglary and failing to surrender to custody, for which he received what appears to be a total of 2 years and 22 days’ imprisonment in 2007.  He was released from custody on 27 October 2008.  He has not been convicted of any offence since then.

10.In mitigation, the defendant points out that he is now married, has a wife and a 2-year-old son who is residing in Mainland China.  He lives alone in Sham Shui Po.  He has been employed as a plumber and earned a monthly salary of $16,000.  His reason for committing the offence, he says he had some financial difficulties since his marriage and he is working as a part-time waste scavenger or waste recycler.

11.The defendant was familiar with the building and had walked past on a number of occasions.  He has said in mitigation he believed the building was abandoned (that was not the case as agreed in the admitted facts:  it was unoccupied or the room was unoccupied) and managed to gain entry and whilst in the flat, he says out of momentary greed, took away the Chinese painting, sold it for $10 in Sham Shui Po.

12.In terms of mitigation, it has been said the defendant co-operated with the police and made a voluntary confession; he has pleaded guilty; his last conviction in 2007 was almost nine years ago; that no tools or weapons were used when committing the offence; it was unlikely that there would be anyone in the property at the time when he entered.  It is said he only formed the intention to steal when he was inside the property and that was out of momentary greed.

13.As far as the offence of burglary is concerned, there is a clear guideline sentence for that offence.  No dispute is taken on that guideline sentence.  This is a domestic burglary and for such a premises, whether occupied or unoccupied, the starting point for sentence for a person of clear record will be one of 3 years’ imprisonment. 

14.Normally, a person is entitled to a one-third discount.  However, I do have to take into account in this case the defendant did abscond, so his plea cannot be described as entirely timely and that has been said in recent cases as being capable of affecting the discount that would be appropriate to be given for a plea of guilty.

15.The most recent discussion of that can be found in the case of HKSAR v Lo Kam Fai, a case at CACC 374/2014, which judgment was given on 2 February 2016, where it has been said that where there is no timely plea then the discount appropriate for plea can be reduced from that of one-third.

16.In determining the starting point on Charge 2, firstly, I have already indicated this is a domestic premises burglary, where the normal starting point is one of 36 months’ imprisonment or 3 years’ imprisonment.

17.There is a potential aggravating factor, in that the defendant has a previous similar conviction in 2007.  I consider that is sufficiently distant in time.  The defendant has maintained a clear record since then and I will not consider it as an aggravating factor in determining sentencing for this case.  So the starting point I will adopt on Charge 2 is one of 36 months’ imprisonment.

18.Having regard to the fact that the defendant’s plea is not timely, I shall give a discount for plea of 25 per cent in this case.  That is 9 months’ discount, which leads to a final sentence of 27 months’ imprisonment on the second charge.

19.On the third charge, I take into account the defendant was absent for a period of time and the trial could not proceed.

20.I take a starting point of 6 months’ imprisonment and reduce that to 4 months’ imprisonment for the defendant’s plea of guilty.  He is entitled to a full discount on that charge.

21.I must also consider the appropriate overall totality of sentence.  In order to achieve that, I shall order that 2 months of Charge 3 be served consecutively to Charge 2 and the other two months be served concurrently.

22.It gives a final sentence of 29 months’ imprisonment.