HKSAR v. Leung Hiu Ming

DCCC 277/2018

[2018] HKDC 1553

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 277 OF 2018

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REASONS FOR SENTENCE

1.The defendant pleads guilty to two charges of burglary, contrary to section 11 of the Theft Ordinance[1] (charges 1 & 6) and two charges of theft, contrary to section 9 of the Theft Ordinance (charges 2 & 3).

2.Full particulars of the offences are set out in the facts admitted by the defendant.

Charge 1

3.In summary at around 10 a.m. on 22 December 2016 Ms Law, the tenant of Room C, Flat 16, 18/F, Man Wah Building, 10-16 Man Wui Street in Yau Ma Tei, left home. At around 11 a.m. the same day Ms Law’s boyfriend left home and locked the door to the flat but did not close the window. 

4.At around 7 p.m. the same day Ms Law returned home to find the flat had been ransacked and the window grille of the left window in the living room had been dismantled.  One bracelet, three rings, three pairs of earrings, one bottle of wine and a smartphone had been stolen.  The total value of the stolen property was $26,800. 

5.Palm prints of the defendant were lifted from the inner side of the window frame in the living room. 

Charge 6

6.In summary in the evening of 19 December 2017 Madam Lau went to visit her son Mr Siu, who lived at Flat 19B, 7/F, Lee Shing Mansion, Nos. 11-19 Wai Ching Street in Yau Ma Tei.   Madam Lau had her own set of keys to enter the flat but did not realise she had left the keys in the door lock when opening the door to enter the flat.

7.When Madam Lau left her son’s home at 9:30 p.m. she noticed that the keys were not in the door lock but only realised that she had lost the keys after she had returned home.  Madam Lau called her son to ask if the keys were still hanging in the door lock.  Mr Siu could not find the keys. 

8.Around 4:30 p.m. the next day, 20 December 2017, Madam Lau went to her son’s flat to do some cleaning.  After about 20 minutes Madam Lau closed the door and windows properly and left the flat. 

9.Between 5:33 p.m. and 5:57 p.m. the defendant used the keys left in the door by Madam Lau to burgle the flat.  As the defendant left the building he was followed by the police.  At 6:06 p.m. the police arrested the defendant when he tried to pawn four rings in a goldsmith store on Temple Street in Yau Ma Tei.

10.The police also found on the defendant another ring, HK$5,500 cash, Renminbi ¥100, a bundle of keys and two pawnshop tickets.  Under caution the defendant admitted burgling the home of Mr Siu.

11.The police contacted Mr Siu who confirmed that the five rings the money and the bundle of keys were stolen from his flat.  The total value of the stolen goods was $29,619. 

Charges 2 & 3

12.In a subsequent video recorded interview, the defendant admitted that in March 2017 he had picked up a ring in the Golden Dragon Game Centre (charge 2) and in July 2017 he had picked up a watch in another game centre in Yau Ma Tei (charge 3).

13.The defendant also said that he pawned both the ring and watch on 14 November 2017.  The police were able to recover both the ring and the watch from the pawnshops with the two pawnshop tickets found on the defendant. 

Mitigation

14.In passing sentence, I have carefully considered everything said on behalf of the defendant by Mr Ho, including that the defendant committed the burglaries because he was in severe financial difficulties having borrowed money to repay loans. 

15.I have read the mitigation letters written by the defendant, his father and pastor Cham Lai Pun of Ping An Christian Church, all asking for a lenient sentence. 

Starting point

16.The correct starting point for a single burglary of domestic premises committed by a first offender of full age where there are no aggravating or mitigating features is 3 years imprisonment. 

17.I am satisfied a starting point of 3 years’ imprisonment is appropriate for each of the burglaries (charges 1 & 6) and 6 months’ imprisonment is appropriate for each theft by finding (charges 2 & 3). 

18.The defendant has previous convictions including convictions for robbery, theft and attempted burglary.  Taking into account the conviction for attempted burglary was in 2007, which was the defendant’s last conviction, I do not enhance the starting points by reason of the defendant’s criminal record.

19.Giving the defendant full credit for his pleas of guilty reduces the sentence on each of the burglaries to 2 years’ imprisonment and on the two thefts to 4 months’ imprisonment.

Totality

20.Where offences are committed in different premises against different victims on different dates, consecutive sentences should be imposed, subject to the totality principle.  The two burglaries were separate and distinct offences. In my view sentence must reflect the two burglaries were committed twelve months apart. 

21.Mr Luk confirms that without the confession of the defendant that the two pawnshop tickets related to thefts from Game Centres the police would not have known about the two thefts. 

22.In HKSAR v Ma Ming[2] the Court of Appeal held that the fact that a frank confession provides the only evidence which supports the charge did not entitle the defendant to a further discount over and above the one-third discount. 

23.The Court of Appeal in HKSAR v Ngo Van Nam[3] reaffirmed the position that a judge was not obliged to give a discount over and above the one-third discount explaining that the mitigating factor of a confession was subsumed within the one-third discount.

24.The court in Ma Ming did however say that when considering the totality of the sentence a court, in exercising its discretion, can take into account the fact that the frank confession of a defendant provides the only evidence to support the charge. 

25.Taking into account the seriousness of the offences; the stolen property in the second burglary has all been recovered; the defendant’s confession to the two thefts and the defendant’s personal circumstances, I am satisfied a total sentence of 3 years and 2 months’ imprisonment properly reflects the defendant’s overall criminal culpability on the four charges[4].  

Sentence

26.The defendant is convicted and sentenced as follows:

Charge 1 – 2 years’ imprisonment;

Charge 6 – 2 years’ imprisonment with 12 months consecutive and 12 months concurrent to charge 1;

Charge 2 – 4 months’ imprisonment;

Charge 3 – 4 months’ imprisonment concurrent to charge 2 with 2 months consecutive and 2 months concurrent to charges 1 & 6.

The total sentence to be served by the defendant is 3 years and 2 months’ imprisonment.