HKSAR v. Leung Wai Tong

DCCC18/2010

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 18 OF 2010

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Reasons for Sentence

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1.Defendant, you pleaded guilty to a single offence of burglary, contrary to sections 11(1)(a) and (4) of the Theft Ordinance, Cap. 210. You admitted the brief facts and I convicted you.

2.The brief facts were as follows. PW1, aged 64, is the occupant of Room 2612, Leung Ying House, Leung King Estate, Tuen Mun. On 1 September 2008, his wife (PW2) forgot to remove the key from the keyhole and it was taken.

3.At about 10 am on 4 September 2008, he secured the door and iron gate and left his apartment. He returned at approximately 12.15 pm to find the padlock of the gate missing and the iron gate left ajar. He entered and found you in the bedroom. He asked you what you were doing and you handed him $210 in notes and a key. The notes had originally been placed in a cabinet in the bedroom. You admitted that the padlock was in your own residence, which is Room 2608. You then took PW1 there and retrieved the broken padlock from the under the sofa and gave it to him. PW1 returned to his room and found it had been ransacked.

4.At about 12.30 pm, you knocked on the door of the room and returned a paper box containing a coins bag to PW1. PW1 reported the matter to the police. The police visited your residence, which is Room 2608, and met your girlfriend there. She confirmed PW1’s version of events about the visit to the room and also that you had gone missing.

5.You were arrested on 23 November 2009 and said under caution, “I found the iron gate of Room 2612 was opened and the key inserted in the keyhole of the wooden door. I thought something happened in the room. I knocked and there was no reply. I entered to see what had happened. Once I entered the room, the owner returned. I led him to my residence 2608 to prove I was his neighbour. I did not steal from him.”

6.The prosecution case, which you admit, is that you in fact entered as a trespasser with intent to steal. You admitted to 18 previous convictions, six of which involved dishonesty, but I do note that this is the first time you have committed the offence of burglary.

7.Mr Chan on your behalf entered very persuasive mitigation. He told me that you are 38 years of age, single, but the father of two sons with your co-habitee. Your sons are aged 11 and less than one year, being a baby. Without producing any medical evidence to support this, Mr Chan said on your behalf that your girlfriend is suffering from post-natal depression. I am prepared to accept that.

8.He told me that at the time of the offence you were employed on a casual basis as a decoration worker earning only $5,000 per month which is supplemented by $2,000 CSSA. At the time, your girlfriend was pregnant with a baby, which unfortunately she subsequently lost, and you were in dire financial straits. You saw the key in the door on 1 September, and falling into temptation, you took it. You then struggled with your conscience but were finally driven by financial need to use the key to enter the flat.

9.PW1 there, a gentleman in his mid-60s, found you and far from resisting or offering violence, you returned to him all that you had taken including the padlock and the coins. You also, which is very unusual, took him to your own place of residence so he knew exactly what your address was. I note you have written a letter expressing remorse and the intention to turn over a new leaf. I note also that you have pleaded guilty at the first available opportunity.

10.I am sure that you have been advised by Mr Chan that the usual tariff for burglary of domestic premises is a starting point of some 3 years. However, I do find in this case that there are unusual and mitigating circumstances, some of which are usual, some of which are certainly very unusual.

11.I accept that the offence was carried out out of dire financial need to support your family, not for gambling or drugs or some other nefarious purpose. I accept that there was no question of breaking to enter the flat and I accept that having been stopped and caught by the gentleman, PW1, that you neither offered resistance nor violence and that voluntarily you returned the stolen notes to him. You took him to your place of residence, thereby disclosing your address, and gave him the padlock, and later even went so far as to bring back the coin bag. These are wholly exceptional circumstances in my opinion. I note also that though you have a poor criminal record, this is the first offence of actual burglary.

12.I therefore resolve that a different starting point is appropriate in this case. The starting point I take is one of 30 months, reduced to 20 months for your plea of guilty. You will go to prison for 20 months.