HKSAR v. Li Yuen Hing

DCCC273/2009

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 273 OF 2009

----------------------

----------------------

Reasons for Sentence

1.The defendant pleaded guilty to a charge of burglary.

2.The prosecution case: - PW2 was the shopkeeper of the store.  When she went off duty, she left a white plastic box containing $95 on the table.  She shut the shop and placed the key beneath the roller-shutter.  Some time after midnight PW3 saw the shutter was opened and the defendant was inside the shop.  The defendant took a white plastic box and put it outside the shop.  He returned back to the shop and continued to ransack the shop.

3.PW3 intercepted the defendant and made enquiries from him.  The Defendant said that he found the key underneath the shutter, he used the key to open the shutter to enter the shop  to see what he could take away from the shop. At the time of enquiry, PW3 could see the key was still inserted into the keyhole of the shutter.

4.The defendant was arrested for the offence of burglary.  Under caution, he admitted that he used the key to enter the shop to steal some coins and a stove.

5.Among all the properties, PW2 identified the white plastic box containing $95 belonged to her.  In a subsequent video-recorded interview the defendant admitted that he had taken away the white plastic box with $95 while the stove belonged to him.

6.The defendant has a clear record.

7.In mitigation I was told the defendant is now 59 years of age.  His girlfriend and his 2 years old daughter are both living in China.  In the past, he used to earn $7,000 as a caretaker but was dismissed from his employment in last October.  He became a street sleeper.  He refused CSSA because he was hoping to look for a job but all in vain.  At the material time he was hungry and without money.  He entered the shop to steal $95.  It was out of his character because he is a man of clear record.  The defence says that he is now 59 and should be considered as in his advance age. 

8.I have been referred to an authority that is Pang Chai HCMA764/2002.  The appellant in this case entered a shop and stole $22 out of a momentary greediness.  He was 71 years of age, a drug addict with 27 previous convictions.  The court upheld a sentence of 10 months after adopting a sentence of 18 months, reduced to 10 months in view of his guilty plea.  I agree that 71 years old should be considered as “ advance age ”.

9.A quick reference to the book of Sentencing in Hong Kong by Mr Cross, SC, that it was quoted 60 should be considered as advance age.  However, in HKSAR v Chow Chi Ming, MA1247/2005, the court said that old age, unless extremely advance in age, is generally not a mitigating factor.  In the present case I do not agree that the defendant is in his advance age, he is 59 but not so old to fall into the category of advance age. 

10.I have also been referred to the authority of Cheung To Ming, CACC406/2005.  In that case the appellant was considered as a “sneak thief” because he walked into an education centre to steal some noodle packers.  A starting point of 18 months was adopted and reduced to 12 months to reflect his guilty plea.

11.In the present case, the defendant cannot be categorised as a “sneak thief” because the key was concealed under the shutter.  It cannot be easily seen from outside.  The defendant had to squat down to the base of the shutter and to put his fingers under the shutter to search for the key.

12.The conventional starting point for burglary of non-domestic premises is 2½ years. 

13.In passing sentence I do bear in mind all the mitigating factors before me.  I adopt a starting point of 2½ years, reduce to 20 months to reflect the defendant’s guilty plea.