HKSAR v. Leung Ting Fung

DCCC 968/2022

[2023] HKDC 431

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 968 OF 2022

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REASONS FOR SENTENCE

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1.The defendant is convicted of a charge of burglary, contrary to section 11(1)(b)  and (4)  of the Theft Ordinance, Cap 210, on his own plea and agreement to Amended Summary of Facts.

2.On 5 July 2022, at about 2330 hours, the staff of the subject salon have locked its drawers and roller shutter.  On 6 July 2022, at about 1020 hours, the staff of the salon discovered that the roller shutter was partly opened and a drawer at the cashier was opened.  It was found that the padlock at the entrance (valued at $700), cash of $9,000 inside the drawer at the cashier and a TCL mobile phone (valued at $1,800)  were lost. 

3.CCTV footages showed that the defendant had, together with two unknown males, burgled the subject salon.  The defendant used keys in the commission of the offence. 

4.The defendant was later arrested on 7 July 2022 for burglary and under caution he stated that he burgled because he was in need of money.  TCL mobile phone and cash of $1,300 were found on him and they were seized.  The owner of the salon subsequently identified the TCL mobile phone. 

5.At all material times, the defendant, together with two persons unknown, have entered as trespassers part of the building in which the salon was situated and stole therein. 

Criminal Record

6.The defendant has 6 criminal records involving convictions of 10 charges, 6 of which are related to dishonesty and there are 3 burglary/attempted burglary convictions. 

Mitigation

7.The defendant was born in Hong Kong.  He was educated up to Form 5.  His parents divorced when he was young and he lived with his mother and other siblings until 10 years ago when his mother died.  He has seldom contact with his father, elder brother or younger sister. 

8.The defendant started working after he finished Form 5 education, first as a decoration casual worker, then as a delivery worker in the fruit market on a casual basis until he was arrested.  At the time of arrest, his daily wages was $600. 

9.It was submitted that the defendant committed the present offence as he was in need of money.  His low income simply could not support his drugs addiction habit. 

10.Defence counsel submitted that the defendant is now deeply remorseful as to what he had done in the past and has pleaded guilty at the earliest opportunity to reflect his genuine remorse.  It has also been submitted that the defendant has just finished serving his DATC order and is now free of drugs, and that he vows not to reoffend on his release from prison. 

11.Defence counsel also conceded that the sentencing starting point for burglary into a non-domestic premises for a first offender is 2½ years’ imprisonment.  It is also said that the commission of present offence was not sophisticated. There was no damages done to the premises and the defendant was fully cooperative with the police upon arrest. 

12.Defence counsel conceded that the past criminal record of the defendant involving dishonesty is an aggravating factor in sentencing.  She urged this court to enhance the sentencing starting point by 3 months as in the case of HKSAR v Lui Bing Ching, DCCC 538 & 698/2018. 

Discussion

13.Before sentencing, this court has carefully considered all that was said on behalf of the defendant. 

14.As conceded by defence counsel, it is well-established that the appropriate sentencing starting point for burglary of non-domestic premises, in the absence of aggravating or extremely strong mitigating factor, is that of 2½ years’ imprisonment. (HKSAR v Sim Ka Wing, CACC 450/2000) 

15.The defendant here acted together with two others.  This amounts to an aggravating feature in sentencing and the starting point is enhanced by 3 months. 

16.This court however accepts that there is an absence of sophistication or serious planning in the commission of the offence, but of course there is a division of labour amongst the three.  It is also noted that the defendant only used keys and there was no use of other machinery or tools in the commission of the offence. 

17.There is nothing in particular about the value of the properties stolen and no one is expected to be within the salon at the time. 

18.The defendant has 6 convictions related to dishonesty, including 3 burglary/attempted burglary convictions.  He is clearly considered by this court a persistent offender with no regret for what he has done in the past. He has not learned his lesson despite all these terms of imprisonment passed on him.  This is an aggravating feature in sentencing.  This court is willing to accept the submission by defence counsel and enhance the sentencing starting point only by 3 months.  The sentencing starting point in this case is therefore 3 years’ imprisonment. 

19.Having considered circumstances of the case and all that was said on behalf of the defendant, the most valid mitigating factor is that of his timely plea, for which he is entitled to full one-third sentencing discount. 

20.The defendant is therefore sentenced to 2 years’ imprisonment.