HKSAR v. Yu Man Lung

DCCC 248/2016

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 248 OF 2016

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Reasons for Sentence

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1.The defendant has been convicted after trial of one offence of burglary, and the factual basis for that is set out in my earlier reasons for conviction.

2.But simply stated, the burglary is of a school, which one would classify as a non-domestic premises, the burglary being committed around the early hours of the morning, when there was not likely to be anyone on the premises, and the target of the burglary being various currencies contained in cash form.

3.The defendant was arrested the next day, and some of the money stolen in the burglary was recovered.

4.As far as the defendant’s background is concerned, he is now aged 40 years old, educated up to Form 3 level; has a history of work as a kitchen worker and also has worked in construction.  He is still single and he lives with his 79‑year‑old father, and I understand he is the only person living with his father, and to a certain extent, given his father’s age and medical condition, his care-giver.

5.The defendant also has a criminal record which is of relevance to sentencing.  He has some 25 previous appearances in court, with a total of 29 convictions.  In his early criminal career he had some recorded convictions for possession of dangerous drugs.  However, the bulk of the offences involve offences of dishonesty:  one for handling stolen goods; 22 for theft; and the defendant has received sentences of imprisonment and also sentences of drug addiction treatment centre for those offences.

6.More relevant to today’s sentencing are the two convictions for burglary recorded on 13 March 2013.  The defendant received a sentence of 20 months for an offence of burglary and 16 months for an offence of attempted burglary, with the allocation of sentencing leading to a total sentence apparently of 30 months’ imprisonment.

7.He has also after that received a sentence of 6 months’ imprisonment for theft, which led to him being finally discharged from prison on 17 March 2015.

8.As far as the calculation of sentence is concerned, the commission of burglary is governed, to a certain extent, by guideline sentences.  A person of clear record convicted after trial of a non-domestic premises burglary can expect a starting point for sentence of 30 months’ imprisonment, and this sentence can of course be subject to various aggravating or mitigating factors.

9.In this burglary, the defendant clearly acted alone.  The question of whether the burglary should be classed as a professional burglary arises.  The defendant clearly took steps to avoid detection, but that clearly is common to a number of burglaries.  In respect of this offence, the aggravating factor that I would identify is the fact that the defendant has previous convictions for this offence or the attempt to make this offence.  They are comparatively recent sentencing for them, being in early 2013, and one can draw the conclusion from those convictions that the defendant failed to be deterred by the sentences he received.

10.I do consider they are an aggravating factor, but I also must bear in mind that those are the only offences of burglary the defendant has committed in the past.

11.As far as mitigating factors are concerned, the defendant does not have a plea of guilty to rely on.  There is no admission made by the defendant in this case.  He has been convicted after trial.

12.By my calculation of sentence, the starting point for sentence for this offence will be one of 30 months’ imprisonment for a non-domestic burglary.  The additional aggravating factor of the defendant’s previous convictions for burglary will lead to an enhancement of that sentence by 3 months’ imprisonment.

13.That leads to a final sentence of imprisonment of 33 months’ imprisonment.