HKSAR v. Lam Lik Kwan, Alaric
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DCCC1240/2008 IN THE DISTRICT COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION CRIMINAL CASE NO. 1240 OF 2008 ----------------------
---------------------- Before: Deputy District Judge Mierczak Date: 2 February 2009 at 12.07 pm
Offence: Burglary, etc. (入屋犯法等罪項)
Reasons for Sentence
1. The defendant has pleaded guilty before me today on two matters. One is burglary of non-domestic premises; the other is a theft. 2. Shortly, the facts are these. The defendant was employed as a delivery worker of the burgled premises. He had failed to report to work since 6 November 2008. On 23 November 2008, he had entered his working company intending to steal the two cheques, as he knew they were there. He did, in fact, take those cheques and cashed one of them at the Hang Seng Bank for HK$13,000. The other cheque was discarded. 3. He was picked up very shortly thereafter and he was arrested and cautioned. Under caution, he admitted stealing the cheques on 23 November 2008 and cashing one of them for $13,000. He subsequently made a video interview where he went into the details of the offences committed by him. Interestingly enough, in view of the mitigation that was subsequently put, he said at the time that his friends needed $10,000. As I say, he has admitted those facts. 4. A record has been produced which shows four sets of matters. Most relate to dishonesty. He is currently serving a total head sentence of 8 months’ imprisonment. That sentence was imposed on 9 January 2009, but I am told the events to which it relates occurred in February 2008, which was before the commission of these offences. He has admitted that record. 5. Mitigation has followed, in which I am given some background with respect to him - his education, Form 5, 6 O-levels, etc., in 1991 - and also the fact that his fiancée’s father died in 1995 and the previous work employment that he had. Also there is a 2-page letter produced from the defendant, the gist of which has been explained to me in mitigation by his counsel. 6. Interestingly enough, it is put to me that the reason that he committed this offence was that his own father was very sick in Shenzhen and it was a life or death situation that he needed $10,000, which is at complete loggerheads to the cautioned statement that he made shortly after his arrest, in which no mention of that was made but he had given his female friend in Shenzhen $10,000 and kept $1,400 for himself and his friends needed money. 7. His letter further goes on to acknowledge that the offence is a serious one and he asks for leniency. It is put to me that there were other items in the burgled premises, including cash, but he only took two cheques. 8. As well produced to me are five cases with respect to various aspects of sentencing for matters of this type. I have been taken through each of those and particular parts have been highlighted to me. I am asked not to increase the starting point of 2½ years for matters of this nature, as well as making the sentence for the theft matter concurrent with the sentence for burglary. That is the gist of what I am being asked to do. 9. The offences are serious ones. The defendant had burgled the premises where he had worked. He knew the cheques were there. He took them and cashed one for $13,000. The authorities do suggest that for burglary of non-domestic premises a starting point of 2½ years is the appropriate one. That of course can be increased if there are elements of aggravation present. 10. Here it may be argued that there is, because his record shows he is a persistent offender with regard to matters of dishonesty. However, I am not going to increase the starting point. 11. In the first matter, I do take that starting point of 2½ years’ imprisonment. The defendant will get the full credit with respect to his plea of guilty and accordingly, in that matter, he will be convicted and sentenced to 1 year and 8 months’ imprisonment. 12. With respect to the second matter, I take a starting point of 12 months’ imprisonment. The defendant will also get a one-third discount for his plea of guilty and accordingly, in that matter, he will be convicted and sentenced to 8 months’ imprisonment. 13. I have been persuaded and I am of the view that they are part and parcel of the one offence. The defendant did burgle and take the cheques and cash one of them. Therefore, I will make the sentences concurrent. However, they are obviously separate and distinct matters from the matters he is serving a sentence on and they will be consecutive to his current sentence, which will make a new head sentence for him of 2 years and 4 months.
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