HKSAR v. Mau Fu Pong and Another

DCCC924/2008

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 924 OF 2008

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Before:   Deputy District Judge Casewell

Date:     13 August 2009 at 12.06 pm

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Reasons for Sentence

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1.I shall firstly deal with the file case DCCC924/2008.  In that case the 1st defendant, Mr Mau, has pleaded guilty to an offence of theft of a vehicle and both defendants, Mr Mau and Mr Cheung, have pleaded guilty to the burglary on 16 June at the Pamela Youde Nethersole Eastern Hospital.  Both defendants have admitted the facts of this indictment and I have convicted them on the charges.

2.The facts, as I said, have been agreed and form part of the court record.  Simply speaking, the defendant, Mr Mau, stole the light goods vehicle from his ex-employer.  The vehicle was used subsequently on 16 June when he, the 2nd defendant and another man committed the burglary at the Pamela Youde Nethersole Eastern Hospital.  The burglary was committed at what was an official storeroom in the hospital complex and was targeted because it was a location of which it was unlikely that anyone would be supervising.  In sentencing another defendant, I have treated that location as a commercial premises and for the purposes of sentencing in this case I will similarly treat it as a commercial premises.

3.Now the main mitigating factor for both defendants, and it is common to both of them, firstly is that they have pleaded guilty to the offence.  Both defendants have also made statements to the prosecution authorities detailing their and another person’s involvement in this offence.  They have both given evidence in the trial without which the conviction of another person would not have been obtained.  There is no reason why they should not both enjoy the full discount available to people who assist the prosecution in that way and I would assess that discount in both their cases as being at least a 50 per cent discount from the normal sentence.  I might add that in respect of both defendants, I found their evidence, as I have set out in my Judgment, useful and it is clear that they both had a clear determination to assist the prosecution in this matter which is both valuable to the prosecuting authorities and shows considerable remorse on their part.  Clearly, such an approach by a defendant should be properly rewarded.

4.As far as the personal circumstances of the defendants, they are as follows.  The 1st defendant is 28 years old.  He has a total of six previous convictions.  He would be what can be described as a fairly petty criminal but has committed a burglary in the past.

5.The other defendant, Mr Cheung, has a total of 10 previous convictions of some offences of dishonesty.

6.Now, as far as both defendants are concerned, they have shown remorse and both say they have a determination to no longer persist in a life of crime and the first defendant, Mr Mau, has some impressive support from his family in terms of letters that have been written to me.  It may or may not be the case that they will eventually give up their life of crime.  As far as I am concerned, the sentences must reflect the assistance that they have given to the prosecution.

7.In respect of the charge of theft that Mr Mau, the 1st accused in this case, in 924 faces, I shall adopt a starting point at 9 months’ imprisonment for that offence and, in fact, having regard to his assistance to the prosecution that should after discount lead to a sentence of 4½ months’ imprisonment.

8.In respect of the burglary for the other defendant who had not pleaded guilty to this offence, I took a starting point of 2 years and 6 months’ imprisonment.  For the purposes of sentencing in this case, I will restate that as being 30 months’ imprisonment. 

9.To reflect both defendants assistance to the prosecution in this case, I will give the full discount of 50 per cent and reduce the sentence to 15 months’ imprisonment on the 2nd charge for each defendant.

10.As far as the sentence on the 1st charge is concerned, I have expressed to counsel that I still have the view that the stealing of the van on the 1st charge was in fact part and parcel of the arrangements for the burglary and I will order that the sentence on the 1st charge be run concurrently to that on the 2nd charge and that would lead on the 1st  indictment to an overall total sentence for the 1st defendant of 15 months’ imprisonment and for the 2nd defendant 15 months’ imprisonment.

11.The 1st defendant has also involved himself, some five months later, in the attempted burglary at the storeroom in Reclamation Street.  Again, I have previously taken a starting point at 2½ years’ imprisonment for that offence and I will restate that as being 30 months’ imprisonment in this case.  Now, after deduction of 50 per cent for the defendant’s plea of guilty and assistance, the sentence stands at 15 months’ imprisonment. 

12.Now clearly this is a different and distinct offence from the set of offences committed under 924 of 2008 and at least some element of that offence will have to be served consecutively.  However, it is necessary to preserve a sufficient disparity between this defendant’s sentence and the sentence of defendants who chose not to plead guilty.  In order to do that, I will order that 3 months of this sentence be served consecutively to that of 924/2008 and the balance be served concurrently.  This will lead to an overall total sentence for the defendant on both indictments of 18 months’ imprisonment.