HKSAR v. Wong Wai Leung and Another

DCCC 151/2009

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 151 OF 2009

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Coram: Deputy District Judge Dufton in Court

Date of sentence: 17 July 2009

Charge: Burglary (入屋犯法罪)

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REASONS FOR SENTENCE

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1.The defendants plead guilty to one joint charge of burglary of domestic premises (charge 2).  D1 pleads guilty to one further charge of burglary of domestic premises (charge 1). 

Charge 1

2.Full particulars of the offences are set out in the admitted facts.  Briefly at about 2.45 p.m. on the 17th November last year D1 together with another male broke into domestic premises in Kwun Tong at a time when they were occupied.  When the occupant came out of his bedroom the defendant and the other male immediately fled. 

Charge 2

3.As a result of viewing CCTV the identity of the defendant was revealed.  On the 9th December the police launched an operation outside the residence of D1.  D1 was seen to meet D2 in a teahouse after which D2 drove D1 to the Wai Sang Metal Shop, where D1 bought two crowbars.  D2 then drove to Lannox Gardens, No 18 Lancashire Road in Kowloon Tong.  D1 and D2 alighted and entered Lannox Gardens.

4.The defendants burgled the 1/F, Lannox Garden and stole five watches, three pendants, one gold coin, three wrist chains, five rings, six brooches, two pairs of earrings, three necklaces, HK$9,119.70 and about $500 in foreign currency.  The total value of the stolen items is about $144,619.70, some of which have been recovered. 

5.When the surveillance officers were about to approach the car D1 and D2 suddenly rushed out of Lennox Gardens and boarded the car, which was then driven towards Lion Rock Tunnel.  During the pursuit a yellow bag was thrown out of the car.  The defendants made good their escape but were arrested later the same day.

6.The police recovered the yellow bag in which was found some breaking tools and suspected stolen items, which were later identified as the property stolen from the 1/F, Lannox Garden.  The most valuable item a Vacheron Constantin watch, valued at $80,000 was not however amongst these items.

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. Where the defendant has committed more than one offence of a similar nature at different times a higher sentence than if there had been only one offence is appropriate (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.D1 is properly to be regarded as a persistent offender having ten convictions six of which are for burglary (see HKSAR v CHAN Pui-chi [1999] 2 HKLRD 830).  I am satisfied therefore the proper starting points after trial in respect of D1 are to be increased by 6 months to 3 years and 6 months imprisonment.  Although the burglary in charge 2 was clearly planned with crowbars being specifically purchased to commit burglary and the property stolen was not insubstantial, I do not propose to increase the starting point by reason of these matters.

9.In passing sentence I have carefully considered everything said on behalf of the defendants by Mr Chan and Mr Lam together with the letter submitted by D1.  I note both defendants offer to compensate the owner for the items not recovered but are unable to make any payments today or in the foreseeable future.  In those circumstances it is not appropriate to make any compensation order, as the defendants are both to serve lengthy prison sentences and therefore have no means to pay. 

10.Giving the defendants full credit for their pleas of guilty they are sentenced as follows:

D1

Charge 1 – 2 years and 4 months imprisonment; and

Charge 2 – 2 years and 4 months imprisonment.

The two offences are separate and distinct for which consecutive sentences are appropriate.  In considering totality of sentence to be served I take into account that the starting points have already been increased by reason of D1 being a persistent offender; the premises in charge 2 were ransacked with property of not insubstantial value stolen and that the burglary was planned. I also take into account that the defendant’s father has since the defendant was arrested been diagnosed with cancer.  In all the circumstances I order 1 year and 2 months consecutive and 1 year and 2 months concurrent.  This makes a total sentence of 3 years and  6 months imprisonment, which I am satisfied properly reflects the defendant’s criminality on the two charges (see for example HKSAR v LUI Yuen-shuen CACC 322/2006 and HKSAR v CHAN Li-fat CACC 180/2005).

D2

Charge 2 – 2 years imprisonment.