HKSAR v. Yuen Ying Yeung

DCCC 799/2018

[2019] HKDC 513

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 799 OF 2018

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REASONS FOR SENTENCE

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1.The defendant pleaded guilty to one charge of burglary.

Summary of facts

2.PW1 was a tenant of Room 8, one of 10 rooms in a sub-divided flat on 1^st Floor of No 935 Canton Road.

3.At about 1:15 pm on 7 May 2018, PW1 left Room 8 with all windows and the door secured.  She returned at 7:30 pm and found the door prized open.  The place was ransacked and her Home Visit Permit, China Identity Card, Hong Kong driving licence, China driving licence, two bank cards, one credit card, RMB100 cash coupon and one television went missing.

4.The case was reported.  Upon investigation, fingerprints were lifted from a shoe box, matching those of the defendant on Police file.

5.The defendant was located and arrested.  Under caution, he admitted to burgling the room and stealing the properties mentioned above.  The missing television was later found in the defendant’s residence upon search.

6.In the subsequent cautioned interview, the defendant claimed that it was his first time going to Room 8 and that he committed the burglary alone.  He had forced open the wooden door and damaged the lock to gain entry.  He kept the television and discarded all the identification documents.

Previous convictions

7.The defendant has 15 convictions from 4 previous court appearances.  His first conviction was for theft when he was almost 16 years old.  His second conviction was for robbery and he was sentenced on the same day to detention at the Rehabilitation Centre.

8.3 years later in April 2010 when he was 18 and a half, he was convicted of possession of a dangerous drug and was sentenced to detention at the Drug Addiction Treatment Centre (“DATC”).  On 8 April 2011, he was sentenced again to the DATC for claiming to be a member of a triad society and wounding under s 19 of the Offences Against the Person Ordinance, Cap 212.  He was 19 years and 4 months old.

9.Just about 2 weeks later, he was sentenced for 10 charges of theft to the DATC, the sentence to run concurrently with the earlier DATC sentences.

10.The defendant managed to stay on the right side of the law for the next 7 years, until his conviction on 6 August 2018 for criminal damage when he was, again, sentenced to the DATC. He was released from detention on 3 April 2019 and transferred to Lai Chi Kok Reception Centre pending being dealt with in the present case.  He had finished serving the sentence in that case.

11.In addition to the above convictions, the defendant was arrested in June 2016 in relation to a case of conspiracy to defraud.  He was granted Police bail but absconded on 5 June 2016.  This conspiracy to defraud case is still pending.  The defendant, therefore, committed the present offence whilst on Police bail, and 2 years into his abscondment.

Mitigation

12.The defendant is 27.  He has fathered a daughter with his former girlfriend, but they have not kept in touch.

13.The defendant was diagnosed as suffering from bipolar disorder in 2015 and requires medication and regular follow up treatment.

14.The defendant lives with his present girlfriend, together with a 3-year-old girl and her mother at a building at No 1184 Canton Road.  The defendant had come to know the mother and daughter before and they decided to rent the room together.

15.Unfortunately, the mother has personal issues and the defendant would end up looking after the daughter a lot of the time.  The defendant sees her as a god-daughter and they have a good relationship.

16.The defendant moves house for other people from time to time to earn a living.  His financial situation has not been good.  The defendant kept the television that he stole so that the girl can watch.  It was not for his personal benefit.

17.Since his arrest, the defendant has started attending Bible school and has been learning about proper moral values.  He hopes to be able to find a job as a cook after his release from prison.

18.The defendant had cooperated with the Police fully and had entered a timely plea.  Mr Leung for the defendant asks for leniency.

Sentence

19.It is trite law that the sentencing guidelines for burglary of a domestic premises is that of 3 years’ imprisonment for a first offender, subject to any aggravating or mitigating circumstances[1].

One aggravating factor

20.The defendant committed the present offence whilst on Police bail.  He committed the present offence two years into his abscondment.  This is a serious aggravating factor for which I will enhance his sentence by 6 months’ imprisonment.

21.Although the defendant is not of clear record, his previous convictions were quite some time ago.  His last convictions involving dishonesty were 8 years ago and when he was at a younger age.  His latest conviction was for criminal damage, an offence of a different nature to burglary and which was committed before the present offence.  I will not enhance his sentence on the basis of his previous convictions.

No additional Mitigating factors

22.There is no evidence that the defendant’s commission of the present offence was as a result of his mental condition.

23.Furthermore, there is no evidence that suffering from bipolar disorder has affected the defendant so much and in such a way that would warrant a discount in sentence.  As such, there is to be no discount based on his medical condition.

24.As for his cooperation with the Police upon arrest, I find that any discount he may be entitled to on this basis should be subsumed in the one-third discount granted for his plea of guilty.

Sentence

25.As referred to above, I adopt a starting point of 3 years’ imprisonment, enhance it by 6 months and then discount it by one-third for the defendant’s timely plea, and sentence the defendant to 28 months’ imprisonment.

26.I am told that the defendant had finished serving his sentence for the Criminal Damage conviction on 3 April 2019.  There is, therefore, no need to deal with totality.

27.If by any chance the previous DATC order had not expired, pursuant to section 6A(1)(b) of the Drug Addiction Treatment Centres Ordinance, Cap 244, the previously in force detention order shall cease to have effect upon the imposition of the present sentence.