HKSAR v. Lai Sau Ming

DCCC831/2008

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 831 OF 2008

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HKSAR

v.

Lai Sau-ming

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Before:   Deputy District Judge R Chan

Date: 15 January 2009 at 10.17 am

Offence:  Burglary (入屋犯法罪等罪項)

Reasons for Sentence

1. The defendant is convicted on his own plea of eight counts of burglary.  These burglaries were committed within a space of five months in the year 2008, and they were all committed on non-domestic premises.

2. For these eight burglaries, some resulted in loss of property, which value was relatively substantial.  Some involved loss of property of lesser value, and some resulted in no loss at all.  There was no aggravation in the way these burglaries were committed in that there was no weapon used, no violence used on any of the victims.  And it does not seem to this court that the defendant committed these offences together with other people.

3. The defendant was arrested on 13 July 2008.  At the time, he was carrying a notebook computer, and he had cash $11,420 on him.  Upon being questioned by the policeman, the defendant made admission that he had just been to Tsim Sha Tsui where he committed Charge 8.  The defendant was later interviewed under caution, and the defendant made admissions to the other seven offences as well.

4. The defendant has been before court on 12 occasions.  He has been convicted four times for burglary.  The last conviction for burglary was in 1996 when he was sentenced to imprisonment for 1 year and 8 months.

5. I adjourned sentencing on the defendant till today for the purposes of obtaining a background report on the defendant.  I am told that the contents have been explained to the defendant, and there is no indication that there is any part in the report has been subject to dispute.  This background report gives a helpful account of the defendant’s personal as well as family background.

6. I am aware that the defendant now has to support two young children and his wife in Shenzhen.  I am also aware that the defendant suffered injury to his back in 1999.  Because of that, the defendant said he was no longer able to do decoration work as before.  He expressed to the probation officer that, in fact, after his discharge from prison, he was very eager to turn over a new leaf but, unfortunately, despite his effort, he was unable to make ends meet.  He ran into financial trouble.

7. And what is worse was that his father suffered injury because he had an accidental fall and, for that injury, medical expenses up to a few thousand dollars had to be obtained.  The defendant, therefore, went to borrow money from the finance company.  And, obviously, after raising loans from the finance company, the defendant was unable to repay those loans.  And that is the reason why he committed the present offences.

8. And in relation to his financial difficulty, even if I accept his version in its entirety, it does not help him at all because it has been emphasised time and again by the higher courts that personal financial difficulty is no real mitigation.  Therefore, I have no alternative but to reject his plea for leniency in terms of his personal difficulties.

9. Despite that, I do take note that his wife speaks highly of the defendant.  And the defendant’s elder sister also indicates that the defendant is not wicked in nature.  The root problem is that the defendant mixes with undesirable peers.  But, again, none of these will amount to valid mitigation.  His pleas of guilty certainly are mitigation factors.

10. And on top of that, hearing has been adjourned twice to chambers where further mitigation was put forward.  I was given an opportunity to hear from both the prosecution as well as the defence in relation to the additional mitigation.

11. The conclusion that I draw is that, although I cannot give full credit to the additional mitigation, I am prepared, in the light of what has been advanced on his behalf by his solicitor, to give the defendant a further reduction in sentence other than the usual one-third discount.  In my view, the correct appropriate discount in this case should be one of 40 per cent.

12. In relation to the starting point that I should adopt, it has been urged on your behalf that I should give a lower starting point for those burglaries that involved loss of property of lesser value or those of burglaries that resulted in no loss of property at all.  With respect to Mr Hui, who is acting on the defendant’s behalf, I must say that I cannot accede to that submission because even for a burglary resulting in no loss of property, at least non-domestic burglary, the usual starting point is still 2½ years.

13. In my view, the fact that there is no property loss or that there is very minimal value of property loss, at best, can only be viewed as there is no existence of aggravation, meaning that sentence should not be increased but not the other way around.

14. I have considered all the charges.  In my view, although the defendant has some previous convictions, similar convictions, those convictions are relatively old.  The latest one was in 1996.  I, therefore, do not think that his previous convictions will have any adverse effect on him as far as adoption of starting point is concerned.

15. I will still adopt 2½ years as the starting point for each of the eight offences before me.  And because of his pleas of guilty as well as the additional mitigation advanced enabling me to give the defendant 40 per cent discount, the starting point for each offence will be reduced because of the reduction from 30 months to 18 months.  In other words, the 40 per cent reduction has saved you 12 months’ imprisonment.

16. I then proceed to consider totality.  I think the global overall sentence of about 3½ years is appropriate in the circumstances because if you refer to 3½ to the starting point before reduction, the sentence would be around about 6 years.  Now, these are all estimate figures only, so there is no point in putting all the figures in the calculator to try to work out the exact figure, suffice to say that, in my view, the overall global sentence should be, at the end, 3½ years’ imprisonment for all eight offences.

17. The way to do it is this.  For the 2nd charge, 6 months out of the 18 months’ imprisonment be ordered to be served consecutively to the 1st charge.  For Charges 3 to 8, I order that 3 months’ imprisonment on each of these charges be served consecutively to all other sentences for each charge.  So, if my rough calculation is right, 18 months for the 1st charge plus 6 months in the 2nd charge brings us to 24 months.  Three months each on top for the remaining six charges bring us to 18 months.  Adding 24 to 18, that brings us to 42 months.  This is exactly 3½ months’ imprisonment.  And this is, as a result of my sentence on you, the total that you have to serve.

18. Now, this is an extremely serious case.  Just imagine that if you are brought to court on eight separate occasions - for each, you go in for 18 months - that would end up as a very, very lengthy sentence.  But, of course, we have a jurisdictional problem here.  We cannot pass sentence in excess of a certain limit.  And, secondly, we have to consider the totality when giving consecutive sentences.  And we have to bear in mind that you are entitled to some meaningful discount in any event.  Therefore, I think in all the circumstances, in the light of your pleas of guilty and the additional mitigation advanced on your behalf, 3½ years’ imprisonment in total is the most appropriate sentence.

19. But please do not get me wrong.  Do not think that it is some kind of encouragement for you to go out and commit offences again.  The more you commit, the more discount you get:  that is not the way I am bringing this message to you.  In fact, if I were you, I will start seriously thinking about what you should do in the future.

20. In terms of age, you have not reached 50 yet.  You have two young children to support.  You still have a lot of duties to perform as far as your family is concerned.  If you really want to live as a responsible husband as well as a responsible father, then please give yourself a chance to carry out those duties because if you commit offences, you get caught; you get sentenced to prison; there is no way you can carry out your duty as a father as well as husband.

21. This is, in my view, wholly irresponsible behaviour.  There are a lot of situations involving a family, a lot of difficulties involving yourself, can be avoided.  Your only solution is not to go out and commit crime.  In fact, it should be ruled out as a solution.  You just look at how your wife holds her opinion towards you.

22. Despite the fact that you committed these offences, she still thinks, she still thinks that you are a good husband and that you are a filial son.  Should you not be shameful of what she says about you?  You have to live up to that kind of remark, please.  If your wife thinks that you are a good husband already, then try to improve yourself to be a better one.  In my view, a good husband does not go out and commit offences and go to prison.  Do you understand?

DEFENDANT:  Yes.

23. Now, in my view, 3½ years' imprisonment is already very lenient, and I hope that you take full advantage of this lenient sentence and when you are released, try to be a new person, okay?

Appeal against sentence dismissed. See CACC36/2009 dated 27 August 2010