HKSAR v. Leung King Fai, Roy

DCCC 1081/2016

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 1081 OF 2016

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Reasons for Sentence

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1.The defendant has pleaded guilty to one offence of burglary.  It was committed on 20 September 2016 in a residential flat in Lockhart Road, Wan Chai.

2.The details of that offence are admitted.  In somewhat more detail, the facts are that on that day, 20 September 2016, in the morning at about 6 am, the wooden door of a flat in Lockhart Road, Wan Chai, was secured.  The building in which the flat was located had a metal gate which was locked with a password.  There was also a common gate which was usually left unlocked.

3.The defendant was seen by police officers at about 11.05 am on that day.  He was seen entering, or trying to enter, a password into the metal gate of the building without success.  He then followed a person into the building, thereby gaining entry to the premises. The defendant was seen to be holding an umbrella and a bottle of Coca-Cola. These were found by the police, as they followed the defendant, by the common gate.

4.The defendant was then seen to walk out of the premises, and was intercepted straight away.  Two plastic cards and 100 rupees and 5 Renminbi were found in the defendant’s wallet when searched.

5.When he was asked, the defendant immediately said that he had used the plastic cards to prise open the lock of the premises, and stolen the two banknotes - that is, the rupees and the Renminbi - from inside the premises.  He said he had done it because he was unemployed and broke.

6.There was a further video-recorded interview, where he told the police he had attempted to burgle another premises in Causeway Bay.  We understand from the prosecution there will be no further action in respect of that matter.

7.So the defendant admitted to what was effectively a walk‑in burglary in a residential premises.

8.The defendant’s antecedents have been admitted.  He is aged 43, educated to Secondary 3 level; has worked as an assistant in a hair salon, but was unemployed at the time of his arrest.

9.The defendant was most recently imprisoned for burglary and released on 13 August 2016.  He is described as being a drug addict.  He is an addict of “Ice”.  He suffers what is also described as an early psychosis as a result of his addiction.

10.The defendant has a total of 19 previous court appearances and sentences.  The bulk of these are for burglary.  The defendant has committed burglary repeatedly and extensively since his first conviction in 1990.  The most recent was a conviction on 12 November 2014:  two separate burglaries and a going equipped for stealing; by my calculation, leading to a total of 36 months’ imprisonment.  The defendant has been committing burglaries since 1990.  On his first conviction he received probation.  In 1993 he was sent to a drug addiction treatment centre for attempted burglary.  In 1994, his first sentence of imprisonment for burglary, for 2 years’ imprisonment in that year; then another further conviction in 1999, where a sentence of 2 years and 8 months was imposed; and since then, regular convictions for burglary for which sentences of imprisonment are recorded. 

11.There was a record in the antecedents of the defendant having a psychiatric condition, so I obtained a report upon that.  Not surprisingly, that report concludes that the defendant has a history of polysubstance harmful use with induced psychosis.  His mental condition, it says, is stable during remand as he is abstinent from illicit drugs.  When he is in the community that stable condition is lost, as he becomes paranoid and what is described as self-muttering, which is precipitated by his drug use.

12.The defendant would appear to be better off in prison, where he does not get access to dangerous drugs, but he is fit to serve any sentence the court deems, according to the psychiatric report.

13.As far as the mitigation is concerned, the defendant’s background is set out.  Although it is said that the defendant has a large amount of previous convictions of burglary, it is submitted he is not a professional burglar.

14.He is 43 years old; as I have said, single; he has no children.  He has lived with his mother.  When he is in the community he seems to suffer from auditory and visual hallucinations brought on by drug use.  He depends on Social Welfare and Disability Allowance.

15.As far as the circumstances of this case are concerned, in mitigation it says it is clear no force was used; no instrument or equipment was used beyond the use of the card; it was an offence that did not involve any real planning; no goods or cash of any real value was taken:  the total value of the currency stolen was less than HK$20.

16.What the defendant is is a persistent stealer from premises, presumably, I would have thought, to fund his use of drugs.  His constant committing of burglary and following sentence of imprisonment appear to have relieved the community of his presence for quite a period of time in the last 20 years.

17.I do note the nature of the burglary committed here, but the court has to take into account the fact that previous sentences of imprisonment have singularly failed to deter this defendant from continuing to commit burglaries, so an element of deterrence must exist in the determination of the starting point for sentence in this case.

18.What I shall do is as follows.  The starting point for sentence for a domestic premises burglary committed by a person of clear record, after trial, is 3 years’ imprisonment, or 36 months’ imprisonment.  There must of course be added to that starting point for sentence an element which reflects the failure of deterrent sentencing in the past to deter the defendant from continuing to commit these kind of offences.

19.In order to reflect that, I shall add a further 9 months’ imprisonment, bringing the starting point to one of 45 months’ imprisonment.

20.The defendant is entitled to a one‑third deduction from that for his plea of guilty, which will lead to a sentence for this offence of 30 months’ imprisonment.