HKSAR v. Leung Ting Fung

DCCC 510/2019

[2019] HKDC 1628

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 510 OF 2019

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REASONS FOR SENTENCE

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Introduction

1.The defendant is convicted upon his own guilty plea of the charge of attempted burglary.

Facts

2.On 22 March 2019, when PC 13966 (“PW1”) and his team members conducted an anti-burglary operation in Mong Kok area, he spotted the defendant acting suspiciously.  PW1 therefore followed the defendant.  Upon reaching the outside of 4^th Floor, No 76 Tai Nam Street, Mong Kok (the “Flat”), the defendant who was wearing a pair of gloves and holding a screwdriver performed some acts against the lock of the Flat’s gate.  PW1 then heard some noise coming out from the Flat, and saw the defendant stepped back. 

3.Ms Poon (“PW2”) came out of the Flat and asked the defendant what he was doing.  The defendant said he had forgotten his keys.  PW2 then returned to the Flat.

4.When the defendant sat at the staircase of the building, PW1 declared his police identity and made enquiries with the defendant.  The defendant replied that he was looking for a friend in the Flat.  PW1 examined the lock of the Flat’s gate and found that it was broken.  PW1 seized the screwdriver held by the defendant who was still wearing a pair of gloves.  A spanner and a two-headed screwdriver were found in the defendant’s waist bag.  The defendant was then arrested.

5.A cautioned video-recorded interview was conducted with the defendant who admitted inter alia the following:-

(i) he tried to prize open the Flat’s gate using the screwdriver he was holding; and

(ii) he was carrying the spanner and the two-headed screwdriver with him because he wanted to repair his bicycle parked at the staircase outside the Flat.

6.The defendant admitted that at the material time, he attempted to enter the Flat as a trespasser with intent to steal therein.

Previous record and background

7.The defendant has two previous convictions of burglary (both of which were sentenced in April 2013 for a total of 10 months’ imprisonment) and one conviction of possession of dangerous drugs sentenced in January 2015 for detention in a Drug Addiction Treatment Centre.

8.The defendant was born in August 1981.  He received education up to Form 5 level.  He is divorced with no children.  Before his arrest, he worked as a decoration worker.  He was last discharged from detention, namely Hei Ling Chau Addiction Treatment Centre, in March 2017.

Mitigation

9.Ms Hui referred to her written Mitigation filed with the court on 26 November 2019.  In addition to setting out the charge, the facts of this case and the defendant’s personal background, Ms Hui also elaborated on the sentencing considerations in her written Mitigation in which the judgments in R v Wong Man CACC 372/1992, AG v Lui Kam Chi [1993] 1 HKC 215, HKSAR v Mohammad Farooq CACC 406/2013 and HKSAR v Cheng Wai Kai CACC 338 & 339/2007 were referred to.  A mitigation letter written by the defendant was also submitted to this court.

Sentence

10.In Lui Kam Chi, the Court of Appeal held that the correct starting point for sentence in a burglary of domestic premises committed by a first offender of full age is 3 years.

11.The present case involves attempted burglary of domestic premises committed by the defendant who was of full age and had two previous conviction of burglary at the material time.  In theory the starting point of more than 3 years’ imprisonment could have been imposed in light of the defendant’s previous convictions of burglary.

12.However, since the previous convictions of burglary dated back in 2013 which is more than 6 years ago, I am minded not to take those previous convictions into account.

13.Applying Lui Kam Chi, I adopt a starting point of 3 years’ imprisonment.  One-third discount is given to the defendant as he indicated his guilty plea at the earliest opportunity.  The sentence is therefore reduced to 2 years’ imprisonment.

14.There being no further valid mitigating factors justifying further reduction in sentence, the defendant is sentenced to 2 years’ imprisonment.