Case Document

100%Judiciary

DCCC 1027/ 2008
Consolidated with DCCC 1124/2008

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NOS. 1027 OF 2008

& 1124 OF 2008 (Consolidated)

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	HKSAR
	V
	FAN Kit-hung	(Defendant)

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Before: Deputy District Judge Eddie Yip

Date: 17 Feb 2009 at 9:47am

Present:

Ms. Sezen Chong, Public Prosecutor for HKSAR
Ms. Ng Mei Ki, of Messrs F. Zimmern, assigned by DLA, for the defendant

1^st-22^nd Charges: Burglary (入屋犯法罪)

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Reasons for Sentence

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The charges

1.The defendant pleads guilty to 13 charges of burglary of non-domestic premises as follows:

Charge Offence date Stolen Property

1 8 May 2008 $75,000 cash

2 10 Jun. $13,000 cash

3 21 Jun. $4,000 cash

6 10 Jul. $23,000 cash

7 12-13 Jul. $3,200 cash

9 17-18 Jul. $450 cash

11 11 Aug. $1,061 cash,

19 boxes of cookies

13 14 Aug. $2,614 cash,2 handbags,90 pieces of T-shirts,2 pairs of trousers

15 16-17 Aug. 1 PS2 game player

16 22-23 Aug. $6,000 cash

19 25-26 Aug. $2,500 cash

20 29-30 Aug. nil

21 1-2 Sep. 1 hard disk

Facts relating to individual charges

Charge 1

2.Ng was working alone at a laundry shop in Mongkok. At that time, there was an unlocked drawer at the reception counter. She heard some noise coming from the shop front. The Defendant was extending his hand over the counter into the drawer. She shouted “Snatching”. The Defendant took $75,000 cash and fled. Ng reported the matter to the police. A fingerprint lifted from the counter was found to match the Defendant’s right middle fingerprint.

Charge 2

3.Ng was the proprietor of a coffee shop in Yuen Long. After close of business for the day, he left the coffee shop after locking the door and windows. When he returned the next day, he found the window in the kitchen prized open. Cash of $13,000 kept in a cash register and two cash boxes were stolen. A report was made to the police. Two fingerprints lifted from a detergent bottle beside the window were found to match the Defendant’s left middle and right ring fingerprints respectively.

Charge 3

4.Leung worked in a cosmetic shop in New Town Plaza, Shatin. After close of business for the day, she locked $4,000 cash in a cash register inside the counter. When she returned the next day, she found the cash register missing. She later recovered it from a flowerbed outside New Town Plaza. All the cash was gone. A report was made to the police.

Charge 6

5.Cheung worked in a jewelry shop in Hung Hom. After close of business for the day, she locked $23,000 cash in a drawer at the cashier counter and left the shop. When she returned the next day, she found the iron grille and the drawer prized open. All the cash was gone. A report was made to the police. A palm-print lifted from the cashier counter was found to match the Defendant’s right palm-print.

Charge 7

6.Chan was the store manager of an ice cream counter in New Town Plaza, Shatin. After close of business for the day, she locked $4,000 cash in the cash register at the counter and left. When she returned the next day, she found the cash register unlocked and all the cash gone. A report was made to the police.

Charge 9

7.Chan was the waitress of a café in New Town Plaza, Shatin. After close of business for the day, she locked $450 cash in the cash register and left the café. When Ng, another waitress, returned to the café, she found the cash register open and all the cash gone. One fingerprint belonging to the Defendant was lifted from the cashier counter.

Charge 11

8.Yeung was an employee of a café in Telford Plaza, Ngau Tau Kok. After the close of business for the day, she locked $1,061 cash in the cash register and left the cafe. When Tse, another employee returned the next day, she found the cash register prized open and all the cash gone. There were also 19 boxes of cookies missing from the display rack. A report was made to the police. One fingerprint lifted from the counter inside the café was found to match the Defendant’s fingerprint.

Charge 13

9.Yu was the saleslady of a fashion store in Millenium City, Kwun Tong. After the close of business for the day, she locked $2,614 cash in the cash register and left the store. When she returned later, she found the main door lock loosened and the cash register prized open. All the cash was gone. In addition, 2 handbags, 90 pieces of T-shirts, and 2 pairs of trousers were found missing from the display rack. A report was made to the police.

Charge 15

10.Chan was the supervisor of a steak house in APM, Kwun Tong. After the close of business for the day, he locked the premises and left. When he returned the next day, he found his PS2 game player, which he had left on top of his locker inside the staff room, missing. There were prizing signs on some of the lockers. A report was made to the police.

Charge 16

11.Cheung was the manager of a restaurant in Citylink Plaza, Shatin. Due to a typhoon he had to close the shop early. He kept $6,000 cash in the cash register and left. However, he forgot to lock the rear door. When he returned the next day, he found the cash register prized open and all the cash missing. A report was made to the police.

Charge 19

12.Lai was the supervisor of a food stall in Sceneway Plaza, Kwun Tong. After the close of business for the day, she locked $2,500 cash in a drawer and left. When she returned the next day, she found the drawer prized open and all the cash missing. A report was made to the police.

Charge 20

13.Cheung was the supervisor of a toy model shop in World Trade Centre, Causeway Bay. After the close of business for the day, she left the shop after securing the doors. When she returned the next day, she found a drawer at the cashier counter, where only documents were kept, prized open. Nothing was found stolen, though. A report was made to the police. One palm-print lifted from a stool inside the shop was found to match the Defendant’s palm-print.

Charge 21

14.Kong was an employee of an ice cream shop. After the close of business for the day, she locked all the doors and left. When she returned the next day, she found prizing marks on various parts of the premises:

(1) the lock of the door leading to the rear employee area;

(2) the lock of the door leading to the shop front;

(3) the cash register drawer at the shop front counter.

15.The CCTV recording system in the rear employee area was damaged and its hard disk (valued at $980) was found missing. One palm-print lifted from the drawer of the cash register inside the shop was found to match the Defendant’s palm-print.

The Defendant’s circumstances

16.The defendant is now 36 years old. He stopped schooling after F. 1. He first worked as a catering apprentice in a restaurant. He later worked as a chef assistant for Fairwood Fast Food Shop. He last worked as a manager trainee in a café of Delifrance. He did not budget his spending properly and ended up in serious debts. He was divorced in 2000. He has lost contact with his ex-wife and daughter. His relationship with his parents is only fair.

17.After his divorce, he cohabited with a woman who was said to have vice habit and triad affiliation. He committed robbery and was sentenced to 40 months’ imprisonment in 2005. He then worked in a pub for several months until it closed down in January 2008. He held no jobs afterwards. He committed the previous offences and the present ones to raise money for spending.

18.Apart from his record for robbery, he was sentenced to 7 days’ imprisonment for misleading a police officer.

The principles of sentencing

Sentencing guidelines for burglary

19.In R v Wong Man [1993] 1 HKC 80, the Court of Appeal said that the proper starting point for non-domestic premises would be 2 ½ years’ imprisonment for a first offender of full age (as per Macdougall JA).

Concurrent or consecutive sentences

20.In Attorney General v Cheung Pit-yiu CAAR 11/1988, Cons VP stated, at para. 6, as follows:

This Court has more than once had cause to restate the general principle that concurrent sentences are only appropriate for offences that can properly be said to have been committed in the course of a single transaction. That can hardly be said of offences involving the possession of drugs, as the judge below correctly believed, on occasions which occurred in separate months. We agree therefore with the submission of Mr. Cross, who now appears for the Attorney General, that the concurrent sentences in fact passed below would he wrong in principle, unless of course, the principle of overall totality required that in the circumstances no further punishment should be imposed. (my emphasis)

Totality

21.Cons VP’s observations in Cheung Pit-yiu (supra) thus takes us to the principle of totality. In R v McKechan [2004] EWCA Crim 212, it was said that totality was a “principle that consecutive sentencing for multiple offences must not be used so as to produce a total sentence which is excessive for the overall offending”.

22.In HKSAR v Zhen Futing Cr App 509/2003, the applicant was charged with two offences of possession of firearms without a licence, two of possession of offensive weapons, and one of resisting a police officer in the due execution of his duty. Stock JA said, at para. 18, that:

Judges must always sentence accurately for each particular offence and having done so, only then address the question of totality.

Jurisdictional limit and meaningful discount

23.Section 82(2)(a) of the District Court Ordinance, Cap. 336, states as follows:

[N]o sentence of imprisonment passed by the Court shall exceed 7 years in respect of one offence and where 2 or more consecutive terms of imprisonment are imposed by the Court under subsection (1), the aggregate of the said terms of imprisonment shall not exceed 7 years.

24.In HKSAR v Li Yan CACC 84/1998, the applicant pleaded guilty to robbery (1^st charge) and unlawful remaining (2^nd charge). The judge sentenced him to a total of 7 years’ imprisonment, namely 6 years’ and 1 year’s consecutive terms. On appeal it was argued that the sentence was wrong in principle because it allowed the applicant no benefit for his plea as the judge could not have passed a longer sentence after trial. After reviewing the authorities, Mortimer VP said, at paras. 8 and 9:

8. The cases cited above demonstrate – and it is self-evident – that justice requires a further meaningful discount should be given from the maximum of 7 years after plea in those cases which would attract 7 years or more as the proper sentence which the court ought to impose. This is to give the accused some benefit for his plea of guilty.

9. But, neither policy nor justice require that a 1/3 discount for a plea should be given from the maximum of 7 years regardless of the proper starting point. In cases where the appropriate sentence to be imposed after discount is 7 years or more, a meaningful discount from 7 years should be given in order to give some benefit for the plea. The same applies if the appropriate sentence is so near 7 years that the discount is not meaningful. As to what is meaningful in the particular circumstances, this must be left to the sentencer, but rarely would a reduction of less than 1 year be so considered.

25.In HKSAR v Lau Tai Heung CACC 54/1999, the prosecution argued that where multiple charges, each within the jurisdictional limit of the District Court, were involved, one had only to look at the respective starting points rather than the maximum of the District Court’s jurisdiction. In rejecting this argument, Nazareth VP regarded, at para. 24, that:

It is contrary to the [dicta in Li Yan] and would here eliminate the incentive given for the considerable benefits that the courts recognize flow from pleas of guilty.

26.In HKSAR v Bui Chi Ming HCMA 596/2004, the applicant pleaded guilty to contravention of deportation order (3rd charge) and unlawful remaining (5^th charge). He was sentenced to a total of 3 years’ imprisonment, the maximum of the magistrate’s jurisdiction. The respondent DOJ raised the same argument as it did in Lau Tai Heung (supra) Lunn J said, at para. 14, that:

14. I reject the submissions of the respondent. I am satisfied that if the prosecution make an error in choosing the jurisdiction in which to have a matter tried either in respect of a single charge, where the appropriate sentence after discount from a starting point is the maximum of greater than the maximum of the court’s jurisdiction, or as in circumstances whereby a combination of charges are brought each with a starting point within the jurisdictional limit and sentence policy requires that the sentences be consecutive one with the other the court must, nevertheless, reflect credit for the pleas of guilty by imposing a total sentence less than the jurisdictional limit. In those circumstances, the observation of Silke JA in R v Kwok Chi Kwan And Another [1990] 1 HKLR 293 at 296 C are apposite:

“… then a defendant may be said to have an advantage given him. But this is an advantage unsolicited by a defendant and it should not result in what can be termed the legitimate expectation of some recognition of a plea being denied him.”

27.It is now well-established that a meaningful discount in the District Court, whether for a single charge or multiple charges, would rarely be less than 1 year’s reduction from the jurisdictional limit of 7 years.

The sentence I pass

28.Based on the guideline laid down in Wong Man (supra), I take a starting point of 2 years and 6 months’ imprisonment for each of the 13 charges. The only mitigating factor is the plea of guilty. It warrants a one-third discount. The sentence for each charge is 1 year and 8 months (or 20 months).

29.According to the Court of Appeal in Cheung Pit-yiu (supra), different offences relating to different transactions would call for consecutive sentences. The overall length, 21 years and 8 months (or 260 months), is astounding. Even the District Court’s jurisdictional limit of 7 years can be seen as a most favourable answer to totality.

30.Last but not least, I have to give a meaningful discount. According to Mortimer VP in Li Yan (supra), it is rarely less than 1 year. I can see no reason to depart from that observation. I make the following adjustment: