HKSAR v. Tsang Wai Man

DCCC 976/2009

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 976 OF 2009

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Reasons for Sentence

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1.The defendant pleads guilty to 3 burglaries of 3 schools in Tai Po. The 1^st Charge took place at New Territories Women and Juveniles Welfare Association Leung Sing Tak Primary School on 18 April 2009. The 2^nd Charge took place at Po Leung Kuk Tin Ka Ping Primary School on 9 May 2009. The 3^rd Charge took place at Immanuel Lutheran College on 9 July 2009.

2.The stolen properties were a laptop computer belonging to the principal valued at $7,552 in his 1^st floor office (1^st Charge), about $150 charity money held in a 2^nd floor classroom by a teacher (2^nd Charge), and 2 computers valued at $10,000 in total in a 1^st floor classroom (3^rd Charge).

3.In each instance he was captured on the school CCTV. In the 2^nd Charge he was also seen face-to-face by the cleaning lady and the administration officer of the school. They both picked him out in an identification parade.

4.He was arrested on 14 July 2009. When interviewed by the police, he admitted the allegations forming the 2^nd Charge but denied those relating to the 1^st and 3^rd Charges.

5.He is 35 years old, born in Hong Kong. His wife is applying for divorce at the present moment. They broke up 1 year ago as she always complained about his meagre financial provision to her. He felt depressed and took to drugs for solace upon the ill advice of his friends in Shenzhen. He became a drug addict for “ice”. The present offences were committed to buy drugs.

6.He has 6 previous convictions, including a burglary in 1998. He was educated up to F. 3 level. He did various unskilled and part-time jobs before arrest.

7.In R v Wong Man [1993] 1 HKC 80, the Court of Appeal regarded that the proper starting point for non-domestic premises would be 2 years and 6 months’ imprisonment.

8.In HKSAR v Sim Ka-wing Cr App 450/2000, Keith JA, explained the conventional starting point for burglary:

“9.  The conventional starting-point of 2½ years' imprisonment for the burglary of non-domestic premises relates to burglaries with no aggravating or mitigating features.  Such burglaries will involve a measure of planning, and thus a degree of premeditation and planning is already built into the conventional starting-point.  The conventional starting-point can be lowered in the case of the opportunistic burglar, akin perhaps to the sneak thief who walks into an open office to steal whatever he can find.  Likewise, the conventional starting-point can be increased in the case of professional criminals who plan their burglaries with meticulous care and steal goods and cash of considerable value.  In our opinion, the degree of planning and premeditation in this case was more (though not much more) than normal, and justified a modest increase in the starting-point.”

9.In Attorney General v Cheung Pit-yiu CAAR 11/1988, the respondent was sentenced for 2 charges of trafficking in dangerous drugs which took place on separate dates 15 days apart. Cons VP explained the nature of concurrent sentences:

“6．This Court has more than once had cause to restate the general principle that concurrent sentences are only appropriate for offences that can properly be said to have been committed in the course of a single transaction.  That can hardly be said of offences involving the possession of drugs, as the judge below correctly believed, on occasions which occurred in separate months.  We agree therefore with the submission of Mr. Cross, who now appears for the Attorney General, that the concurrent sentences in fact passed below would be wrong in principle, unless of course, the principle of overall totality required that in the circumstances no further punishment should be imposed.”

10.In HKSAR v Woo Chung-hing Cr App 19/ 2002, the applicant committed two distinct offences of trafficking on separate dates 3 weeks apart. Lugar-Mawson J, who delivered the judgment in the Court of Appeal, said the Court “can see no reason why the Judge should not have passed wholly consecutive sentences on the Applicant.” (para 9)

11.In R v McKechan [2004] EWCA Crim 212, it was said that totality was a “principle that consecutive sentencing for multiple offences must not be used so as to produce a total sentence which is excessive for the overall offending”.

12.In HKSAR v Zhen Futing Cr App 509/2003, Stock JA, at para. 18, expected the court to fix appropriate sentences for each offence, then consider the application of the totality principle, and, in particular, whether any adjustment needs to be made to any of the sentences to achieve the total effective sentence which is consistent with the application of the principle.

Sentence I pass

13.There are no aggravating features in each charge here. I take the usual starting point of 2½ years for each. The plea of guilty is the only mitigating factor. Each sentence is reduced to 20 months. They are to run consecutively.

14.However, totality wise, I order 6 months of each of the sentence for the 2^nd and 3^rd Charges to be consecutive to the 1^st Charge. The rest will all be concurrent. The sum is 32 months in total for all 3 Charges.