HKSAR v. Leung Hin Fai and Another

HCCC318/2009

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO. 318 OF 2009

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

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

Before: The Honourable Mrs Justice V Bokhary

Date:    7 December 2009 at 10.24 am

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

Transcript of the Audio Recording
of the Sentence in the above Case

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

COURT: Leung Hin-fai and Sun Chi-man, the 1st charge is of a burglary committed by both of you in domestic premises on 15 March this year. The 2nd charge is of a robbery committed by both of you in domestic premises on the 17th of that month. The 3rd charge is of a burglary committed by you, the 1st accused, alone at domestic premises on the 14th of the following month. You, the 1st accused, have pleaded guilty in the Magistrates’ Court to the three charges against you while you, the 2nd accused, have pleaded guilty in the Magistrates’ Court to the two charges against you.

The property taken is set out in the charges, and the circumstances appear by the facts which each of you have admitted. I need not list such property or recite such circumstances, but I should make it clear that I take it into account in favour of each of you that the robbery had not been planned as a robbery. It was planned as a burglary but became a robbery when the occupant woke up.

As to the charges against both of you, I will, without holding it against you the 1st accused, treat the role played by you, the 2nd accused, as less serious. The only mitigation available to you are your guilty pleas.

I have of course taken into account everything urged in mitigation on behalf of each of you and the letters handed up to me this morning. Each of you have of course been given separate consideration. To ensure that the total sentences are not too high, the sentences I pass on each of you will be concurrent. But each term passed on you, the 1st accused, will reflect the fact that you have committed three offences. And each term passed on you, the 2nd accused, will reflect the fact that you have committed two offences.

Each of you, especially Leung Hin-fai, has a bad criminal record with a number of previous convictions including once for offences of dishonesty against property.

It is clear, from what the Court of Appeal has said (I have in mind in particular the case of HKSAR v Chan Pui Chi [1999] 2 HKLRD830 at page 883) that while a defendant is sentenced for the offence or offences for which he has been brought to court and not for previous offences for which he has already served the penalty, the constant repetition of offences of a particular kind increases the gravity of the offence or offences for which he is to be sentenced. The previous sentences not having been an effective deterrent, the prevention of further repetition is plainly in the public interest.

All things considered, the starting points I adopt for you, the 1st accused, are as follows: 4½ years’ imprisonment on 1st charge; 7½ years’ imprisonment on the 2nd charge; and 4½ years’ imprisonment on the 3rd charge. Discounting each of those terms by a third, I pass the following sentences on you, the 1st accused: 3 years’ imprisonment on the 1st charge; 5 years’ imprisonment on the 2nd charge; and 3 years’ imprisonment on the 3rd charge. Since all these sentences are made concurrent, you, the 1st accused, will go to prison for 5 years. The suspended sentence of 3 months’ imprisonment would not be activated since it was only passed in May of this year, which is after the commission of the present offences.

All things considered, the starting point I adopt for you, the 2nd accused, are as follows: 3½ years on the 1st charge and 6 years on the 2nd charge. Discounting each of these terms by a third, I pass the following sentences on you, the 2nd accused: 2 years and 4 months’ imprisonment on the 1st charge and 4 years’ imprisonment on the 2nd charge. Since all these sentences are made concurrent, you, the 2nd accused, will go to prison for 4 years.