HKSAR v. Chong Sit Yuen

DCCC 958/2018

[2019] HKDC 706

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 958 OF 2018

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REASONS FOR SENTENCE

1.The defendant pleads guilty to one charge of burglary of domestic premises in Tin Shui Wai, contrary to section 11 of the Theft Ordinance[1].

2.Full particulars of the offence are set out in the summary of facts admitted by the defendant on 3 April 2019.  In summary at 1215 hours on 2 August 2006 Ms Wong Mei Ho went out and secured the doors of her home at Flat A, 30/F, Block 13 Lockwood Court, Kingswood Villa in Tin Shui Wai. 

3.When Ms Wong returned home at 1745 hours the same day she found the metal gate and the wooden door of her home had been prized open; signs of ransacking and long scratch marks on the wooden floor.    

4.Ms Wong found property to the value of $968,064 had been stolen including a safe, over $340,000 cash, four Rolex watches; jewellery, designer bags; travel documents and a suitcase[2].

5.CCTV footage of the carpark, the lift, the lobby and outside Block 13 captured the defendant and Chan Sze Chiu entering Block 13.  The defendant entered first at 1503 hours carrying a big bag while Chan parked a Mercedes Benz in the carpark.  Chan entered Block 13 at 1513 hours. 

6.At 1553 hours the defendant and Chan are seen pushing a box and a suitcase into the lift.  Chan goes to collect the car while the defendant waits guarding the box and the suitcase.  When the car stops outside Block 13 the defendant and Chan load the box on the passenger seat and the suitcase in the trunk.

7.The safe was later recovered on the ground floor and the suitcase on the staircase landing between the 2nd floor and the 3rd floor of a three storey village house in Tai Po where Chan lived.   The left palm print of the defendant was found on an envelope inside the safe.

8.The defendant went to the Mainland on 4 August 2006 and was arrested by the police when he re-entered Hong Kong on 1 August 2018.  

9.In three video recorded interviews the defendant admitted, inter alia, that he helped Chan move some of the items out of the flat.    

10.Ms Lam informs the court that apart from the safe, the suitcase and some documents inside the safe none of the stolen property including the cash, watches or jewellery has been recovered. 

Mitigation

11.In passing sentence, I have carefully considered everything said on behalf of the defendant by Mr Luk and Mr Ching together with the defendant’s mitigation letter and a letter written by the defendant’s son.

12.Mr Ching informed the court that the defendant returned to Hong Kong so that he could donate his kidney to his brother.  I therefore adjourned sentence to await a decision being made by the doctors in charge as to whether the defendant was a suitable donor and whether the defendant could donate his kidney while serving sentence. 

13.I am told today that a decision has still not been made whether the defendant is a suitable donor.  The defendant has applied to the Correctional Services Department to be allowed to donate his kidney while serving sentence.  The application is being considered by the Correctional Services Department and that if approved the defendant will be able to donate whether he is on remand or serving sentence.  The defendant therefore asks that he be sentenced today.

14.Sentence was also adjourned to obtain the facts admitted byChan Sze Chiuand the reasons for sentence, Chan Sze Chiu having pleaded guilty to burglary and sentenced to 2 years and 8 months’ imprisonment on 8 May 2007[3]. 

Starting point

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

Aggravating features

16.I am satisfied the following aggravating features are present. First, the commission of burglary by two or more persons[4] and second, property valued at nearly $1 million was stolen and has not been recovered[5]. 

Chan Sze Chiu

17.As noted already Chan Sze Chiu pleaded guilty to the charge and was sentenced in May 2007 to 2 years and 8 months’ imprisonment[6]. I have now had an opportunity of reading the facts admitted by Chan Sze Chiu and the reasons for sentence[7].

18.Taking into account that the burglary was well organised; well planned; property of high value was stolen and almost nothing recovered and that Chan Sze Chiu was a repeat offender having three prior convictions for burglary, the last of which he was released from prison in early 2006, the sentencing judge was satisfied that a 4 year starting point was appropriate.

19.Mr Ching submitted that the defendant was not the mastermind and was only asked by Chan to move things.  Although the defendant was suspicious Mr Ching said that the defendant turned a blind eye and just did his job.  The defendant says he did not share the stolen property and was only paid a few thousand dollars by Chan. 

20.As indicated in court during the last hearing I do not accept from the bar table that the defendant was only asked to move something and did not know a safe was stolen.  Mr Luk informs the court today that the defendant knew that he was moving a safe out of the premises.

21.Mr Ching submitted the guilt of the defendant was less than Chan Sze Chiu and that a starting point of no more than 4 years and probably lower was appropriate.  Mr Luk in asking for a lower starting point submits that the instigator was Chan and that the role of the defendant was a minor role. 

22.I disagree that the role of the defendant was minor.   The role of the defendant in moving out a safe from domestic premises was an integral part of the burglary.  I am satisfied no distinction should be drawn between the two defendants. 

Criminal record

23.Although the defendant does not have any prior convictions for burglary he does have previous convictions for offences of dishonesty.  The defendant last appeared in court on 30 December 2004 when he was sentenced to a total of 2 years’ imprisonment for offences concerning false instruments[8].  Like Chan Sze Chiu the defendant was also released in early 2006[9] and committed the present offence on 2 August 2006.

24.I am satisfied the same starting point of 4 years is appropriate. 

Timely plea of guilty

25.The defendant left Hong Kong two days after the burglary and only returned to Hong Kong on the 1 August 2018, almost twelve years later. 

26.Mr Ching said that the defendant went to the far Northeast of China to meet his girlfriend and settle down there.  As indicated in court during the last hearing I do not accept from the bar table that the defendant left the jurisdiction merely to go live with his girlfriend. 

27.Mr Luk today accepts that the defendant fled the jurisdiction and refers me to the defendant’s mitigation letter written on 1 May after the last hearing.  In the letter the defendant states that after he committed the offence he panicked, neither wanting to face it or having the courage to surrender to the police.  The defendant said he therefore settled for the next best thing and abandoned his family and fled to hide in the Mainland. 

28.While in China the defendant was convicted of fraud in December 2007 and sentenced to 12 years’ imprisonment.  After serving 10 years and 2 months’ imprisonment the defendant was released on 3 February 2018[10].

29.As noted earlier Mr Ching said that the defendant returned to Hong Kong so that he could donate his kidney to his brother.  Mr Luk submits that the defendant, conscience–stricken, voluntarily surrendered to the authorities and admitted the offence[11].

30.Mr Ching submitted that because the defendant was not arrested at the time he left the jurisdiction he should not be regarded as having absconded.  Mr Luk similarly submits that the defendant did not abscond and should therefore be given the usual one-third discount[12]. In support of his submission Mr Luk refers the court to the judgments in HKSAR v Ngo Van Nam[13] and HKSAR v Lo Kam Fai[14].

31.I have no hesitation in rejecting these submissions.  The defendant is entitled to credit for pleading guilty however his plea is not a timely plea having left Hong Kong two days after the burglary and returning only twelve years later. 

32.As the defendant states in his mitigation letter he fled to hide in the Mainland.  I also note from the Certificate of Release the defendant was released from prison on 3 February but only returned to Hong Kong six months later. 

33.The usual range of discount afforded to a defendant who absconds is about 20% to 25%[15]. 

34.As Stock JA observed in HKSAR v Chow Tak-fuk[16]:

“Whilst the courts must always encourage persons to surrender, so that some credit for that fact will normally be given, those who might be minded to flee should not be led to believe that if ultimately they return they will be in no worse position than had they not fled in the first place.”

35.Similarly, in HKSAR v Sun Yu Hing the defendant left for the Mainland almost immediately after committing a robbery and was only arrested about two years later when he returned from the Mainland[17]. The Court of Appeal in upholding a discount of 20% adopted the approach in HKSAR v Chow Tak-fuk.

36.Whether a lesser discount is appropriate is contextual and will depend very much on the individual circumstances.  Whilst the defendant did not flee to the Mainland after arrest he clearly left Hong Kong almost immediately to avoid arrest for what was a very serious burglary.  The defendant did not return to Hong Kong for almost 12 years, largely due to being imprisoned in the Mainland. 

37.I take into account that the defendant eventually returned to Hong Kong and having no identity card surrendered to the authorities on arrival at Lo Wu. 

38.In all the circumstances I am satisfied the appropriate discount is one of 10 months’ imprisonment which reduces the sentence to 3 years and 2 months’ imprisonment, which is just over 21% discount from the starting point of 4 years’ imprisonment. 

39.Mr Luk also submits credit should be given for the defendant’s confession notwithstanding a lack of evidence from the prosecution to link the offence to the defendant. 

40.I disagree there was a lack of evidence.  The facial appearance of the defendant was clearly and fully captured in a close-up taken from the CCTV footage and the left palm print of the defendant was found on an envelope inside the safe [18].

41.Furthermore, in HKSAR v Ma Ming 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[19].  In HKSAR v Ngo Van Nam the Court of Appeal 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[20].   

42.The defendant is convicted and sentenced to 3 years and 2 months’ imprisonment.