HKSAR v. Leung Hung, Andy

DCCC 23/2020

[2020] HKDC 774

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 23 OF 2020

____________

____________

REASONS FOR SENTENCE

1.The defendant pleaded guilty to a charge of "Burglary". He burgled a residential flat situated at the Ground Floor of a village house and stole numerous valuable properties as well as cash.

Summary of Facts

2.At the material time, Mr. Chan (PW1) and his parents were residing at the Ground Floor of a village house situated at Tong Sheung Tsuen in Tai Po ("the Flat"), the address of which is pleaded in the Charge. 

3.The Flat had 2 entrances.  The main entrance could be locked and the back entrance was under repair.  The back entrance consisted of a metal gate and a glass door[1].  A metal wire and a piece of nylon string were used respectively to tie the metal gate and glass door closed.

4.About noon on 1 August 2019, PW1 left the Flat after locking the main entrance.  No one else was present after he left.

5.About 5:00 p.m. on the same day, PW1's parents returned and found the Flat having been ransacked.  A notebook computer, an iPhone, 14 bottles of wine, 2 electric drills, 3 handbags and 1 backpack (valued at $41,459 in total) were found missing.  Cash in the sum of HK$26,500 and RMB7,800, 1 credit card, 1 EPS card and 3 passports were also found missing.  All the stolen properties belonged to either PW1 or his parents.

6.CCTV footage of the Flat revealed that about 1:23 p.m. on that day, the defendant and another male were wandering around the Flat.  The defendant was seen wandering around the back entrance and tempering with the handle of the main door as well as the window nearby.  The footage also captured the defendant leaving the back entrance with bags of objects together with the other male.  The Police was alerted.

7.Subsequently, the defendant's fingerprint was found on the inner edge of a closet in the master bedroom of the Flat.

Mitigation & Sentence

8.The defendant is 47 and has 1 conviction record dated 1998, which involved a total of 5 offences, none of which were theft-related; and he was not sentenced to imprisonment. The defendant resides with his girlfriend and 2 sons (aged 5 and 2). His girlfriend just gave birth to their baby daughter 2 months ago.

9.In mitigation, defence counsel Mr. Lam informed me that the defendant started his kitchen work at the age of 15. He gradually worked his way up to the chef position. Unfortunately, he injured his right hand at work 3 years ago. He then became a painter, earning about $15,000 to $18,000 per month. Mr. Lam submitted that the present burglary was not well-planned or sophistically executed. The culprits made no attempt to hide their identities by not wearing face masks or gloves. They did not even notice the presence of CCTV cameras. Letters written by the defendant and his mother were placed before me; their contents are duly noted.

10.Time after time, the court has expressed in very clear terms that being in financial difficulty (however serious) is no mitigating factor for committing a crime. In modern Hong Kong, there is sufficient social welfare protection for the poor to meet their basic needs.

11.The normal starting point for domestic burglary is 3 years' imprisonment. Although the back entrance of the Flat could not be locked and was loosely closed, it did not in any way serve as an invitation for anyone to go in to steal.

12.Although the present offence was committed by 2 culprits acting in concert, I accept that there is a slight element of "opportunistic burglary". On the other hand, the value of the properties and cash stolen is not a negligible amount. I am also aware that the defendant has managed to stay trouble-free in the past 20 odd years. After weighing all relevant factors, I consider a starting point of 3 years' imprisonment just and appropriate. With the timely guilty plea, the sentence is reduced to 2 years. Apart from this, I see no other mitigating factors which warrant any further reduction. I sentence the defendant to 2 years' imprisonment.