HKSAR v. Leung Ka Man

DCCC 299/2019

[2019] HKDC 1201

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 299 OF 2019

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REASONS FOR SENTENCE

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1.The defendant faced a single charge of burglary, contrary to section 11(1)(b) and (4) of the Theft Ordinance, Cap 210, Laws of Hong Kong.

2.The particulars of offence reveal that the defendant, on 15 October 2018, having entered as a trespasser part of a building known as S. K. H. Kei Lok Primary School, Lok Wah South Estate, Ngau Tau Kok, Kowloon (hereinafter referred to as “the School”), stole therein 5 notebook computers, 4 bags, one can, cash of about HK$2,090, one iPad mini, one handbag and one sound recording pen (hereinafter collectively referred to as “the Stolen Properties”).

3.He pleaded guilty to the charge.

4.According to the facts agreed by the defendant, the staff room of the School was ransacked by him at the material time.  Some of the drawers of teachers’ desks therein were prized open.  The Stolen Properties − worth a total of HK$32,090 − were then found missing.

5.CCTV footage of the School captured the acts of the defendant.

6.I am being told, through the able submissions made on behalf of the defendant by Mr. Luk, both written and supplemented orally, that the defendant, a 35-years-old single man, was born in Hong Kong and educated locally up to Secondary 3.  He worked as an electrical worker and renovation worker thereafter.  He was all along living with his parents in the Ngau Tau Kok area.

7.By way of mitigation, Mr. Luk submitted that on the day in question, the defendant walked past the School after having dinner with a friend of his.  The defendant noticed that one of the ventilation windows on the ground floor of the School was opened and he saw no lighting from the School.

8.It was at that point that the defendant − out of his momentary greed – decided to take advantage of the situation and gained entry into the School through the ventilation window in question.  He intended to steal therein and eventually did.

9.The defendant was not, originally, in possession of any equipment.  He merely used a stapler, which he managed to find on one of the teacher’s desk in the staff room, to prize open some of the drawers therein.

10.It was urged on behalf of the defendant by Mr. Luk that the offence was an opportunistic rather than a premeditated act on the part of the defendant.

11.I am prepared to accept this. 

12.Mr. Luk further said that the main reason behind the defendant’s commission of the present offence was due to financial difficulties which originated from a debt incurred by him dating back to early-2015.  By April 2018, such debt reached HK$35,000.  The defendant sold the Stolen Properties in order to reduce his indebtedness.  With the assistance of the defendant’s family members, I am being told that the outstanding debt will be settled by the end of this year.

13.I was also told that the defendant is extremely remorseful towards the present offence.  Further, as the said debt will be settled soon, I was urged to consider that there is no chance for the defendant to reoffend.

14.As the present offence of burglary took place in a non-domestic premises, I take 30 months’ imprisonment as the starting point.

15.The remaining issue is one of enhancement.

16.The criminal records of the defendant reveal that he had been sentenced by various courts on seven previous occasions, three of those concerned with dishonesty-related-offences.  The latest sentence past on the defendant, which involved 21 burglary-related-offences, resulted in him receiving a total term of 4 years and 8 months’ imprisonment.  He was discharged from prison on 19 April 2018.

17.Less than 5 months after the said discharge, the defendant committed the present offence.

18.Insofar as the issue of enhancement of sentence is concerned, the Court of Appeal in HKSAR v Lau Hiu Man [2013] 2 HKLRD 862 said the followings:-

“The principles relating to the sentencing of persistent offenders were set out by this court in HKSAR v Chan Pui Chi [1999] 2 HKLRD 830. That decision makes it clear that for a persistent offender there is the need to both provide him with additional deterrence and also to protect society from him. This was explained by Stuart-Moore VP at 834 A to C, where he said:

“This will have the result that the starting point which would have been adopted for a man of good character will sometimes need to be increased to take into account the aggravating features of persistence and the failure of previous sentences to deter on the one hand, and the court’s duty to protect the public on the other. The court, in other words, is passing a deterrent sentence on the persistent offender, from whom the public needs protection, which is often unnecessary on a first or even sometimes a second-time offender.”

In HKSAR v Lam Kwai Wa, unreported, HCMA 1078/2002 Deputy High Court Judge McMahon, as he then was, discussed this principle at paragraph 9 of his judgment when he said:

“As I understand that principle it is not that an offender is being sentenced at a higher level on the basis of his prior criminal record, but that his sentence should be enhanced on the narrower basis that his prior history in repeatedly committing a certain category of offence demonstrates that the personal deterrence factor of previous sentences has been, in that offender's case, insufficient to deter him from again committing that type of offence. Considerations of preventing the offender from further offending in that way and the protection of the public then justify an enhancement of the sentence which would otherwise have been imposed.”

There is no percentage of enhancement that appellate courts have said is appropriate in any particular situation. The percentage of enhancement will vary according to the seriousness of the offence, the circumstances of the offender and the sentencing purpose for which enhancement is being employed.

19.Having considered the circumstances in which the present offence was committed, the submissions made on behalf of the defendant as well as the relevant legal principles involved, I propose to make an enhancement of 3 months’ imprisonment.

20.This will bring the starting point of the defendant’s sentence to one of 33 months’ imprisonment.

21.The defendant had indicated his guilty plea as early as 13 June 2019 and I will give him full credit for that.  He is therefore entitled to the full 1/3 sentencing discount.

22.The defendant is therefore sentenced to a term of 22 months’ imprisonment.