HKSAR v. Fung Ying Hong

DCCC 451/2009

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 451 OF 2009

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REASONS FOR SENTENCE

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1.The defendant pleads guilty to one charge of theft of a bicycle  (charge 1), contrary to section 9 of the Theft Ordinance, Chapter 210 and one charge of burglary, contrary to section 11(1)(b) and (4) of the Theft Ordinance.

2.In summary at about 8.30 a.m. on the 22nd March 2009 Mr Tam left his wooden hut at Lot 35, San Shing Avenue in Sheung Shui, without closing the doors.  When Mr Tam returned a few minutes later he saw the defendant riding a bicycle in a car park outside his wooden hut.  Mr Tam noticed the defendant holding a semi transparent plastic bag inside which he could see his mobile phone.  Mr Tam intercepted the defendant and called the police.

3.The police arrived and arrested the defendant.  The police searched the semi transparent plastic bag and besides the mobile phone they also found two plastic boxes containing $649 worth of coins; RMB 84.60; one packet of cigarettes and some red packets, which Mr Tam identified as his property stolen from his hut. 

4.Under caution the defendant admitted that he entered the hut and stole the property of Mr Tam.  In a later video interview the defendant admitted stealing the bicycle the day before from the riverbank of the Ng Tung River.

5.In passing sentence I have carefully considered everything said on the defendant’s behalf by Miss Chan, including that both offences were opportunistic crimes. 

6.Having seen the photographs of the wooden hut and heard from both Miss Lee and Miss Chan I am satisfied the premises are to be classified as domestic premises.  As soon as the defendant entered the premises he accepts he saw a bed inside.   

7.The correct starting point for a single burglary of domestic premises committed by a first offender of full age where there are no aggravating or mitigating features is three years imprisonment (see Attorney General v LUI Kam-chi [1993] 1 HKC 215 as applied in Attorney General v LO Ching-fai [1996] 2 HKCLR 20).

8.The defendant is properly regarded as a persistent offender in offences of dishonesty having committed no less than sixteen offences of dishonesty, mostly offences of petty theft (see HKSAR v CHAN Pui-chi [1999] 2 HKLRD 830).  I note he was last released on the 14th March this year only days before the commission of these offences.

9.I accept a lower starting point can be taken where the burglary is opportunistic (see HKSAR v SIM Ka-wing CACC 450/2000 as applied in HKSAR v YEUNG Kwok-sang CACC 4/2006).  Taking into account the burglary was opportunistic and that the defendant is a persistent offender in offences of dishonesty I am satisfied the proper starting point after trial for the burglary is 2 years and 9 months imprisonment and for the theft of the bicycle 3 months imprisonment. 

10.Giving the defendant full credit for his pleas of guilty he is sentenced as follows:

Charge 1 – 2 months imprisonment; and

Charge 2 – 1 year and 10 months imprisonment

The two offences are separate and distinct for which consecutive sentences are appropriate.  I order the sentences to be served wholly consecutive.  I am satisfied a total sentence of 2 years imprisonment properly reflects the defendant’s criminality on these two charges.