HKSAR v. Chiu Chun Lung

DCCC 266/2016

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 266 OF 2016

----------------------

----------------------

---------------------

Reasons for Sentence

---------------------

1.The defendant has pleaded guilty to one charge of theft. He has agreed the facts, and I have convicted him of that offence.

2.The facts were necessarily lengthy, because the evidence against the defendant would have been essentially circumstantial. However, the essence of the criminality is that the victim was conducting renovation works on the rooftop of a building in Wan Chai, and he placed a Seiko watch valued at some $2,800 into his rucksack before starting work, and the rucksack was zip locked.  The victim went off to other parts of the building for renovation work, and the rucksack was left on the rooftop.

3.The defendant was detected by police officers, who saw him both enter and leave the building where the renovation work was being conducted.

4.The watch was eventually recovered from a room in Wan Chai Police Station where the defendant had been detained.  Although the defendant had been searched by police officers, the watch was eventually found by a cleaning worker.

5.By his plea, the defendant accepts that he took the watch, and must have disposed of it in the room in the police station, no doubt with an intention of avoiding detection.  However, it does mean that the stolen property was recovered.

6.The defendant’s antecedents show that he is currently aged 40.  Although he is described as single, I am told he is a divorcee.  He has had various forms of employment in Hong Kong, but was a recipient of CSSA. 

7.He has a number of previous convictions totalling 17 previous court appearances.  He has convictions relating to possession of dangerous drugs which related to, I am told, an addiction to “Ice” which he has managed to rid himself of.  He has other convictions for dishonesty, including theft.  In 2007 he was sentenced to a term of 8 months’ imprisonment for an offence of theft.  He has offences of dishonesty such as using and possessing false instruments; in 2009, a sentence of 2 years’ imprisonment; and then in 2011, a sentence of 2 years’ imprisonment for possessing a false instrument; further offences of theft in 2013; and also offences of obtaining property by deception.  His most recent offence of theft was on 18 December 2015, where he received a sentence of 14 days' imprisonment, suspended for 12 months, and this offence was committed shortly after that suspended sentence of imprisonment was imposed, this offence being committed on 29 December 2015, and the sentence being imposed on 18 December.

8.In mitigation it is said that by way of a plea to theft, it means there is no unlawful entry to the building, and the offence appears to be what is described as unplanned and opportunistic.

9.Clearly, for offences of theft of this kind, there is no applicable guideline sentence.

10.From the facts we can see that the watch was removed from a locked bag which had been left unsupervised.  There is some resemblance to a pickpocket offence.  However, there are also substantial differences, such as the bag was not in the victim’s possession; this is not a public location, where the public are vulnerable; so that guideline is not necessarily applicable in this case.

11.However, I do consider the offence is more serious than what one would call a run-of-the-mill theft.  There obviously must have been some planning involved to enter into a building to see what could be taken from it.  Although the guideline sentences for burglary are not appropriate, because the defendant has not pleaded guilty to that offence, I cannot ignore the fact that the item was taken from the rooftop of a building where the person leaving it may well consider it would have been safe.

12.I consider that an overall starting point for sentence in respect of this offence should be one of 12 months’ imprisonment.

13.There is, of course, an aggravating factor in the defendant’s previous convictions for dishonesty.  He has a number of those, and previous sentencing has clearly not deterred him on this occasion.  I consider that aggravating factor should mean that the starting point for sentence should be increased to one of 15 months’ imprisonment.

14.The defendant is, of course, entitled to a one‑third deduction from that sentence, which leads to a final sentence for this offence of 10 months’ imprisonment.

15.There is, of course, the suspended sentence, which must be activated.  There is no reason for it not to be. 

16.I consider the suspended sentence to be activated in full, and it will be ordered to be served consecutively to this sentence.

17.So the final sentence for this offence is one of 10 months and 14 days’ imprisonment.