HKSAR v. Li Yun Shing

DCCC 202/2017

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 202 OF 2017

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Reasons for Sentence

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1.This defendant has pleaded guilty to two counts of burglary.

2.Both involved non-domestic premises.  The facts of the offences are straightforward.  At about 2 am on 3 January 2017, the defendant walked past a shopping mall in Tsuen Wan after he had spent the evening in an amusement games centre.  He noticed that there was no security guard at the security post.  He took the opportunity to then enter the shopping mall.  He stole two items from a restaurant inside.  He then left the shopping mall.  Not long after, he walked past again.  Seeing that there was still no security guard at the post, he once more entered the shopping mall. He stole a cash box from a second restaurant.  These restaurants inside this shopping mall are what one can describe as open plan; he did not have to break in or go through individual doors to enter restaurants.  The only door, so to speak, is that of the entrance of the shopping mall.

3.From the first restaurant he took a phone and a laptop or tablet, both worth just under $2,500.  In the second restaurant, on his second trip in, he took a cash box with $1,106.90. 

4.The defendant was caught red-handed leaving the second time.  Police officers on patrol saw him coming out and intercepted him.  He handed over the stolen items and made a full admission under caution.

5.The defendant’s best mitigation is his plea of guilty.

6.The defendant is 30 years old, with many previous convictions.  He has 30 convictions obtained over 23 court appearances.  All offences relate to dishonesty, mainly thefts from vehicles, attempted theft from vehicles, or tampering with vehicles.  All offences were dealt with by the Tuen Mun Magistracy.  I have been told the defendant lives in the Tuen Mun area.  He was last released from his last term of imprisonment less than one month before he committed these burglaries.

7.I have been told in mitigation that the defendant is single, not highly educated, and when he can find employment, he works as a casual worker.  Just prior to these offences he had been unemployed, not through lack of trying, but this meant he had no money and was in financial difficulty.  He had applied for CSSA, which had not yet been approved.  On this particular morning, when he walked past the shopping mall unmanned, he was tempted to enter.

8.Mr Chan has said all he can say in mitigation, and has referred me to an authority, HKSAR v Cheung To Ming CACC 406/2005. This was an unusual situation and burglary where the Court of Appeal departed from the normal 2 years and 6 months starting point.  They found the illegal immigrant appellant in that case an opportunistic thief.  The facts are that he had sneaked into Hong Kong illegally and was hungry.  He entered a kitchen whose doors were wide open.  It was suggested that it in fact had already been burgled before this appellant arrived.  That appellant stole and cooked two packets of instant noodles.  He ate them on the spot.  Feeling guilty, he left 2 RMB on the table.

9.I do not accept that the defendant today is in the same category as that appellant.  However, I will accept that the defendant was an opportunistic thief who saw an unguarded door and entered it.

10.Defendant, please stand up.  Normally, a burglary of a non‑domestic premises would attract a 2½ year starting point where there are no aggravating or mitigating factors.  In fact, the defendant’s record is so appalling, and clearly he is a recidivist, he should be warned that that record could be considered an aggravating factor.  It could mean a higher starting point.  However, I note that there are no burglary convictions, so despite the number of previous convictions, I will not, on this occasion, increase any starting point for recidivism.

11.Having considered the facts of this case, the circumstances of the burglary and the layout of the restaurants, as well as mitigation put forward, I will take a starting point for each charge of 2 years’ imprisonment.

12.The defendant has pleaded guilty and is entitled to a discount of one-third.  After that discount is applied, the defendant is sentenced to 1 year and 4 months for each charge.  Bearing in mind the circumstances of why there are two charges, I will order them to be served concurrently.

13.Therefore, the defendant will serve a total sentence of 1 year and 4 months’ imprisonment.

COURT: Do you understand?

DEFENDANT: Understand.