HKSAR v. Liu Suet Hing

DCCC 165/2016

[2022] HKDC 881

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 165 OF 2016

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REASONS FOR SENTENCE

1.D1 faces 2 charges of "Burglary" (Charges 1 and 2)  and a charge of "Failing to surrender to custody without reasonable cause" (Charge 5). D2, a co-accused in this case, had already been dealt with by another District Judge on 3 April 2017.

2.D1 pleaded guilty to Charges 2 and 5.  I granted the prosecution's application to leave Charge 1 against D1 in the court file; not to be proceeded against him without leave of court.

Summary of Facts

Charge 2

3.The burgled premises ("the Shop")  were a massage parlour situated at 1^st Floor, No.105 Tung Choi Street, Mongkok.

4.Around 3:00 a.m. on 18 November 2015, staff members of the Shop closed up and left.  They returned at 11:00 a.m. and found signs of ransacking near the cashier; the window near the cashier was also opened.

5.Upon inspection, Mr. Siu, owner of the Shop, found a number of items missing.  They included HK$6,000 cash from the drawer in the cashier, THB30,000 cash from the money box, about 171 pieces of Buddhist items (such as pendants, photos, stones, metal plates, metal figures etc.)  from a cabinet near the cashier, a Samsung mobile phone and a Wi-Fi router.  The total value of all stolen properties was about HK$69,000.

6.About 9:30 p.m. on 3 December 2015, D1 and D2 were stopped for enquiry by 2 police officers at Sheung Fung Street in Wong Tai Sin.  D1 was holding a plastic bag which contained 170 pieces of Buddhist items; whereas D2 was wearing a Buddhist pendant around her neck.

7.Under caution, D1 admitted having stolen all the Buddhist items around 4:00 a.m. on 18 November 2015 after climbing into the Shop.  He also admitted that he and his friend "Andy" burgled the Shop.

8.In his 2 video recorded interviews, D1 described how he and Andy climbed into the Shop and who stole what from the Shop.  After committing the burglary, Andy gave $1,200 to D1 as his reward and asked D1 to sell the stolen Buddhist items. When D1 was arrested, he was on his way to show the stolen Buddhist items to a friend.  D1 admitted that all the Buddhist items seized from him and D2 were stolen by him from the Shop.

Charge 5

9.In a mention hearing on 10 June 2016, both D1 and D2 indicated their not guilty plea intentions.  A trial date was then fixed for 17 October 2016 with 5 days reserved.  D1 was granted bail all along.

10.On 17 October 2016, D1 appeared in person and sought an adjournment for him to engage legal representation from the Legal Aid Department.  On 18 October 2016, D1 was represented by assigned counsel, but D1 was absent from court.  A warrant of arrest was issued against him.

11.D1 was re-arrested on 10 September 2021 when he entered Hong Kong via Shenzhen Bay.

Mitigation & Sentence

12.D1 is 35 and has a clear record. His counsel Ms. Kong informed me that D1 is divorced with 3 children (aged between 11 and 14), who reside with D1's ex-wife. D1's last employment was deliveryman in the mainland, earning about RMB3,000 per month.

13.In mitigation, Ms. Kong submitted that D1 did not attend his trial on 18 October 2016 because he went to the mainland to attend the funeral of his then mother-in-law. He remained in the mainland for almost 5 years. He surrendered to the mainland authorities on 8 August 2021 and returned to Hong Kong on 10 September 2021. Ms. Kong also submitted that the burglary took place when the Shop was unattended.

14.The normal starting point for non-domestic burglary is 2.5 years' imprisonment. I note that the Shop was burgled by 2 persons acting in concert. On the other hand, the evidence against D1 for Charge 2 came primarily from his own admissions[1], without which probably a lesser charge of "Handling stolen goods" could only be substantiated. Having balanced all aggravating and mitigating factors, I consider a starting point of 2.5 years' imprisonment appropriate and just for Charge 2.

15.Regarding the guilty plea discount for Charge 2, the original trial date was fixed in a mention hearing on 10 June 2016. The Court of Appeal's decision in HKSAR v Ngo Van Nam [2016] 5 HKLRD 1 did not come out until 2 September 2016. Arguably, D1 could have been entitled to a full one-third discount had he pleaded guilty before the trial began. In any event, having absconded on the 2^nd day of his trial on 18 October 2016 after seeking an adjournment for legal representation on the 1^st day, D1 would not be entitled to a full one-third discount[2]. I will grant a discount of 7 months for the "untimely" guilty plea, reducing the sentence to 23 months. I sentence D1 to 23 months' imprisonment for Charge 2.

16.For Charge 5, the maximum sentence for conviction upon indictment is a fine of any amount and 12 months' imprisonment[3]. D1 has absconded for nearly 5 years, which is a long time by any standard. Attending his mother-in-law funeral in the mainland and failing to return to Hong Kong afterwards is plainly not an excuse for not attending his trial.

17.In HKSAR v Wong Chi Hung CACC 300/2010 (Chinese judgment), the Court of Appeal upheld a starting point of 3 months' imprisonment for a person who has absconded for 28 days. I adopt a starting point of 6 months' imprisonment for Charge 5. With the timely guilty plea, I sentence D1 to 4 months' imprisonment for this charge.

Totality

18.Charges 2 and 5 are separate and distinct. Notwithstanding the totality principle, I order the sentence in Charge 5 to run consecutive to Charge 2. The total of prison term for both charges is 27 months.