HKSAR v. Leung Chin Hung

DCCC 132/2018

[2018] HKDC 1100

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 132 OF 2018

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REASONS FOR SENTENCE

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1.Defendant Leung Chin Hung pleaded guilty before me to one charge of Burglary, contrary to section 11(1)(b) and (4) of the Theft Ordinance, Cap 210. Particulars of offence are that he, on 4 December 2017, in Hong Kong, having entered as a trespasser part of a building known as a building under construction, Block 5, Phase 2, “Ocean Pride”, No 100 Tai Ho Road, Tsuen Wan, New Territories, stole therein 409 copper pipes.

Admitted facts

2.The facts admitted by Mr Leung may be summarized as follows.

3.Almost noon time on 4 December 2017, Mr Leung was seen acting suspiciously.  He was coming out from the entrance of a construction site particularized in the charge.  He was carrying a rucksack of hard and heavy objects.  Observing police officers stopped and searched Mr Leung.  Upon search, 409 pieces of copper pipes (“the pipes”) and a pair of gloves were found inside the rucksack.

4.Under caution, Mr Leung told the officer that:-

(a) He stole the pipes from the corridor of the 47^th and 48^th floors of Block 5 of the construction site for the purpose of selling them;

(b) He wore the gloves in the act of stealing;

(c) He used to work at the construction site as a construction worker; and

(d) He entered the construction site at about 9 am on the day in question by using his Construction Workers Registration Card.

5.Under arrest and reminded caution, Mr Leung said that he stole out of momentary greed.

6.The supervisor of the water-pipe works at the construction site identified the pipes as belonging to his employer company and that they had been placed on the 47^th and 48^th floors of Block 5 of Phase II of the construction site since about February 2017.  He also confirmed that he was not acquainted with Mr Leung nor was Mr Leung an employee of the company.

7.The total value of the pipes was about $4,090.

Criminal record

8.The agreed criminal record shows Mr Leung to have 10 previous convictions the last of which was in 2014.  He has had theft convictions in 2008 and 2014 respectively.  The others were mostly possession of dangerous drug convictions.

Antecedents

9.The agreed antecedents statement shows Mr Leung to be aged 40 now and at the time of the offence; that he received lower secondary education in Hong Kong.  He was unemployed at the time of arrest and claimed to be a drug addict.  He is living with his family in Tai Kok Tsui Road, Mong Kok.

Mitigation

10.Mr Cheung Yiu Leung of counsel mitigated on behalf of Mr Leung.

11.The following is a summary of the mitigation submissions.

12.Mr Leung had worked at the subject construction site between September and October 2017 and that explained why he was able to gain entry into it on the offence date using his Construction Workers Registration Card.  Mr Cheung conceded that this constituted breach of trust against which he had no submissions to make.

13.Mr Leung came to settle in Hong Kong from the Mainland when he was 9 years old and here he completed F3 education.  He is separated from his wife and there were no children out of the wedlock.  He had worked as an air-conditioner installer since 1998 on an on-and-off basis.  He lives with his aged mother in Tai Kok Tsui Road.  He committed his previous offences and the present offence all because of drugs.

14.Mr Leung voluntarily joined a residential rehabilitation programme offered at St Stephen’s Society in Shatin since 14 December 2017 and has been progressing well.  A letter from the Society dated 3 September 2018 was submitted to certify his admission.

15.Mr Cheung submits that the Society has a Christian background and offers inmates a disciplined environment which includes rising and resting at pre-determined times, bible studies, sharing, labour and sports.

16.Mr Leung has received during the 9 months there physical and spiritual assistance and encouragement.  He looks forward to moving to a more advanced stage of rehabilitation if the court will grant him a community service order.

17.Mr Cheung submits that the Society has a 60-70% success rate with its inmates.

18.Mr Cheung relies on the 6 conditions recited in HKSAR v Chow Chak Man & Anor [1999] 3 HKLRD 37, 41, and says that Mr Leung can satisfy some of them.

19.Mr Cheung relies on the case of HKSAR v Wan Ka Kit [2006] 3 HKLRD 9 especially para 28 at pp 17-18 which is recited in full hereinbelow:-

“The Court, in other words, was not restricting the factors to be taken into account for the purposes of making a community service order to the six which they had mentioned. Nor was it insisting that all six factors should necessarily be present, although we should think that in the vast majority of cases where such an order was appropriate most, if not all, of these factors would be present.”

20.Mr Cheung conceded that Condition 1 – a first offender or one with a light criminal record – may not be satisfied.  As regards Condition 2 – coming from a stable home background, perhaps with a family, Mr Cheung submits that Mr Leung might arguably have satisfied it because of the latter’s connection with St Stephen’s Society.  Mr Cheung acknowledges Mr Leung cannot claim to have satisfied Condition 3 – someone who has a good work record.

21.Regarding Condition 4 – be in employment or have a realistic prospect of such, Mr Cheung claims that the Society is offering Mr Leung training and education to enable the latter to live an upright life and therefore the prospect of employment perhaps within the Society itself is high.

22.For Condition 5 – having shown genuine remorse, Mr Cheung submits that Mr Leung has satisfied this condition by pleading guilty and voluntarily joining the rehabilitation programme; Mr Cheung submits that a probation officer’s report, if obtained, will further fill in the details of how Mr Leung has shown remorse.

23.Regarding Condition 6 – no more than a slight risk of re-offending, Mr Cheung submits that the high success rate of the Society suggests that Mr Leung will stand a good chance of staying away from crime.

24.Upon enquiry from the court, Mr Cheung acknowledges that Mr Leung committed the present offence because he needed money to buy drug, but submits that if Mr Leung can abstain from drugs, the world is open to him.

25.Finally, Mr Cheung submits two pages of A4 paper consisting of 9 coloured photographs of Mr Leung’s activities at or with St Stephen’s Society.

Sentence

26.I have considered the mitigation submissions made by, and the letter, photographs and authorities submitted by, Mr Cheung Yiu Leung.

27.I am not at all convinced that Mr Leung has satisfied more than one condition – namely Condition 5 – set out in Chow Chak Man, supra.  In particular, the fact that Mr Leung has committed a more serious offence after staying clean for 3 to 4 years shows that he was still being affected by his fundamental life problem ie that of drug.  Indeed, Mr Cheung was being candid when he said, “If Mr Leung can abstain from drugs, the world is open to him.”

28.I am satisfied the present burglary offence is a serious one because of the breach of trust element.

29.For these reasons, community service order is not a sentencing option here.

30.For the purpose of sentencing, I will treat the construction site as non-domestic premises.

31.The conventional sentence for burglary of non-domestic premises without aggravating or mitigating features is 2½ years’ imprisonment (see Attorney General v Lui Kam Chi [1993] 1 HKC 215, a case submitted by the prosecution, and HKSAR v Sim Ka Wing, CACC 450/2000).

32.This case has the aggravating feature of a breach of trust in that Mr Leung was only able to gain entry to the construction site with a Construction Workers Registration Card because he had previously worked there.  I bear in mind the principle espoused in HKSAR v Pakit Joni, CACC 10/2013.  I shall therefore enhance the starting point by 3 months.

33.Mr Leung has pleaded guilty which entitles him to a 1/3 discount in sentence.  There are no other mitigating factors of sufficient weight to warrant any further discounts.

[Mr Leung, please stand]

34.Mr Leung will go to prison for 22 months.