HKSAR v. Wong Ho Lung
Read the full judgment text of DCCC 882C/2015 on BabelCite. This District Court judgment was delivered on 7 July 2016 before G. Lam.
Criminal law – sentencing – Going equipped for stealing as alternative to Attempted Burglary – Failing to surrender to custody without reasonable cause – starting point – guilty plea discount – totality – consecutive sentences – activation of suspended sentence – D3 carried crowbar, screwdriver and gloves in waistbag for accomplice intending to use them for burglary – Government Chemist evidence linked crowbar paint to prizing marks on victim's metal gate – CCTV captured D3 entering Mei Sau House – D3 absconded from court bail for about 8 days – D3 pleaded guilty to alternative offence on Charge 1 and to Charge 2 – whether starting point of 12 months appropriate for Going equipped for stealing where defendant knowingly carried tools for burglary – whether 3 weeks starting point appropriate for Failing to surrender to custody based on Court of Appeal authority in HKSAR v WONG Chi Hung CACC 300/2010 – whether sentences should run consecutively – whether and how much of prior suspended sentence to activate – starting point of 12 months for Charge 1 reduced by one-third to 8 months – starting point of 3 weeks for Charge 2 reduced by one-third to 2 weeks – Charge 2 ordered consecutive to Charge 1 – 1 month of 2-month suspended sentence in KTCC 6633/2013 activated, consecutive to all sentences – total imprisonment 9 months and 2 weeks.
Legal issues: Starting point and guilty plea reduction for Going equipped for stealing · Starting point and guilty plea reduction for Failing to surrender to custody · Whether sentences for Charges 1 and 2 should run consecutively · Activation of suspended sentence
Outcome: D3 sentenced to 8 months' imprisonment on Charge 1 (Going equipped for stealing) and 2 weeks' imprisonment on Charge 2 (Failing to surrender to custody), with Charge 2 consecutive to Charge 1; 1 month of a 2-month suspended sentence in KTCC 6633/2013 activated and ordered to run consecutively to all sentences in the present case, giving a total imprisonment term of 9 months and 2 weeks.
Cites 1 case
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DCCC 882C/2015 IN THE DISTRICT COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION CRIMINAL CASE NO. 882C OF 2015 ____________
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REASONS FOR SENTENCE 1.The defendant faces 1 charge of "Attempted Burglary" (Charge 1) and 1 charge of "Failing to surrender to custody without reasonable cause" (Charge 2). 2.He pleaded guilty to Charge 2. In respect of Charge 1, he pleaded guilty to "Going equipped for stealing". The prosecution accepted his guilty plea to this alternative offence. Summary of Facts Charge 1 3.Mr. WONG (PW1) resides alone at a public housing unit at Mei Sau House, Mei Tin Estate, Shatin ("the Flat"; address particularized in Charge 1). When he came home around 9:45 p.m. on 25 June 2015, police officers informed him that they suspected the Flat having been burgled. 4.PW1 inspected the metal gate of the Flat and found 2 scratch marks (respectively 2 cm and 3 cm long) and a blue scratch mark (2 cm long) near the lock. He believed these 3 scratch marks to be new. Police officers also found 2 blue prize marks on the Flat's metal gate. PW1 confirmed that he did not suffer any loss. 5.In the evening on 25 June 2015, police officers stopped male CHAN Chong-ming, female TAM Lai-fong and D3 near Mei Chi House, Mei Tin Estate. Upon search, prizing tools (namely a crowbar, a screwdriver and 3 gloves) were found in D3's waistbag. 6.The Police found some blue paint on the crowbar seized from D3. Paint samples of the prize mark on the Flat's metal gate and the crowbar were sent to the Government Laboratory for forensic examination. 7.Government Chemist Dr. SO confirmed that the blue paint sample from the prize mark could have originated from the same source of the blue paint coating on the crowbar. Thus, in his expert opinion, the crowbar could have been in contact with the Flat's metal gate. 8.CCTV footage of the Mei Sau House captured CHAN Chong-ming and D3 entering the building about 4:50 p.m. on 25 June 2015. About 7:20 p.m. on the same day, CHANG Chong-ming, TAM Lai-fong and D3 left the building together. 9.Under caution, D3 claimed that "Ah Ming" asked him to bring the crowbar and screwdriver, which were intended to be used for burglary. D3 denied being involved in any burglary. He remained with "Ah Yan" in her home at Mei Sau House, whilst Ah Ming and "Lai Fong" left Ah Yan's home with the tools. D3 admitted that he would receive a monetary reward for bringing the crowbar and screwdriver to CHAN Chong-ming. 10.In his video recorded interview, D3 gave a more detailed account of his version of the story. He admitted carrying the tools for Ah Ming and leaving Ah Yan's home together with CHAN Chong-ming, Tam Lai-fong and Ah Yan. The 4 of them were intercepted by the Police outside Mei Sau House. D3 claimed he knew nothing about the prize marks found on the metal gate of the Flat. He also claimed that when he, CHAN Chong-ming and TAM Lai-fong went to an amusement game centre in the afternoon that day, TAM placed the tools and gloves in his waistbag. Charge 2 11.On 12 April 2016, a District Judge allowed D3's bail application. He was due to appear in court at 10:00 a.m. on 13 April 2016. He, however, failed to appear in court without reasonable cause. 12.On 20 April 2016, D3 was re-arrested by the Police near the junction between Shangtung Street and Sai Yeung Choi Street. Mitigation & Sentence 13.The defendant is 36 and single. He has 3 conviction records, which included 2 "simple possession" offences (both dated 1999) and 1 "Theft" (Shoplifting) offence. He is in breach of a suspended sentence for the "Theft" offence. Defence counsel Ms. HUI informed me that when the defendant was only 3 years old, his parents had a divorce. He has lost contact with his parents; he was looked after by his grandmother until she passed away in 1997. 14.In mitigation, Ms. HUI submitted that the defendant started working at the age of 15. He has worked as a hair stylist until 2 years ago when he injured his right hand playing sports. He became unemployed and by helping his friends, he committed the offence in Charge 1. Ms. HUI informed me that the defendant is now fully recovered and has found a hair stylist job. He has cut the hair for over 50 of his inmates in Lai Chi Kok. 15.Regarding Charge 2, Ms. HUI explained that in April 2016, the defendant wanted to contact "Ah Yan" with a view to asking her to be his defence witness but without success. He was then worried about his sentence so he foolishly jumped bail. 16.Finally, Ms. HUI submitted that the defendant was brought up in a broken family, but he has been a hardworking person all along. He has no previous convictions of "Burglary", and his "Theft" offence is relatively minor. He has been cooperative with the Police and promises not to get into trouble with the law again. 17.Time after time, the court has expressed in very clear terms that being in financial difficulty (however serious) is no mitigating factor for committing a crime. I note that D3's drug-related convictions took place in his late teenage years. He has remained trouble-free until 2014. This is certainly to his advantage. Charge 1 18.I give D3 the benefit of doubt that he did not burgle the Flat. I also accept that based on his criminal record, he may not be a professional burglar. On the other hand, he knew for what purposes the tools would be used, and willingly carried them with for others. Having considered all relevant factors, I adopt a starting point of 12 months' imprisonment. With the guilty plea, the sentence is reduced to 8 months. Charge 2 19.The maximum sentence for conviction upon indictment is a fine of any amount and 12 months' imprisonment[1]. D3 had absconded for about 8 days. Being worried about his likely sentence is plainly not a reason for not attending court. 20.In HKSAR v WONG Chi Hung CACC 300/2010 (unreported Chinese judgment), the Court of Appeal upheld a starting point of 3 months' imprisonment for a person who has absconded for 28 days. I adopt a starting point of 3 weeks' imprisonment. With the guilty plea, the sentence is reduced to 2 weeks. Total Prison Term 21.Charges 1 and 2 are separate and distinct. Notwithstanding the totality principle, I order the sentence in Charge 2 to run consecutive to Charge 1. The total of prison term for both charges is 8 months and 2 weeks. 22.D3 is in breach of his suspended sentence of 2 months' imprisonment in KTCC 6633/2013. Based on the nature of the offence in that case, I will activate 1 month's imprisonment of that sentence; and he shall serve that 1 month consecutive to all the sentences in the present case.
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