HKSAR v. Tsang Leung Kwan and Another

DCCC80/2010

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 80 OF 2010

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Reasons for Sentence

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1.The 1st and 2nd defendant have pleaded guilty to a joint charge of attempted burglary. The particulars of the offence are as follows.

2.On 21 September last year both defendants attempted to enter as trespassers a bakery in Yuen Long with intent to steal therein. The facts show that this attempt took place at about 3.30 in the morning. The 1st defendant was seen by police officers tampering with the lock of the bakery. A tool that was used to tamper with the lock was later found in a vehicle driven by the 2nd defendant. Obviously the police put the 1st defendant under surveillance.

3.The 2nd defendant was later seen driving a car that the 1st defendant had boarded just after he had tampered with the lock. From the facts it can be seen a third man was involved but not subsequently charged. The 2nd defendant was stopped before he drove this vehicle away. Tools were found in the vehicle in several bags, the 2nd defendant told the police that they did not belong to him but the 1st defendant. He was only responsible for driving this vehicle. The police have evidence that both defendants had been in close telephone contact between 3.36 and 3.46 am. The 2nd defendant fully cooperated with the police and made admissions.

4.I have been informed that the 1st defendant has previous convictions, in fact he has an appalling criminal record. He is a repeat offender and a recidivist. He has 13 previous convictions of which six were burglaries and there were others that involved dishonesty. The 1st defendant is 50 years old and been in prison almost continuously since 1983. His last conviction was in March 2008 where he was sentenced to 24 months for a burglary offence. The 1st defendant was released from custody in May 2009 and this offence took place four months later in September.

5.The 2nd defendant is a 30 year old man with a clear record. I have heard mitigation put forward on both the defendants’ behalf. The best mitigation for both defendants has to be their plea of guilty today. The 1st defendant, Mr Wu has done his utmost to mitigate on his behalf. Not much can be said in mitigation. He has been caught red-handed at it again. He is sorry for his repeat offending and mitigates that this will be the last time. He has suggested that he has tried to provide for his two children’s upbringing and education which has led to a life of crime and it seems in spite of their father they have done well.

6.The 2nd defendant is, as I have said, a man of clear record. This is his first offence. I have been informed that he had in September news that his wife was pregnant and he felt the financial pressure of a new baby on the way. He is acquainted with the 1st defendant and I have heard that he was influenced by the 1st defendant. His role that evening was to act as a driver. I can accept that he was not the prime mover and likely to have been led astray by the 1st defendant.

7.I have taken into account all the facts and mitigation put forward. It is an attempted burglary but the 1st defendant was actually seen tampering with a lock. A burglary for non‑domestic premises carries normally a sentence starting point of 2½ years’ imprisonment where there is no aggravating or mitigating factors.

8.For the 1st defendant, I will take the starting point and I will add to it because I find his persistent offending an aggravating factor I can take into account. I have referred myself to the authority of HKSAR v Chan Pui-chi [1999] 2 HKLRD 3 830 which sets out that a court can increase a starting point to reflect the failure of previous sentences to deter a defendant as well as reflect the court’s duty to protect the public from the persistence of a defendant. Following this authority I increase the starting point of 2½ years by 6 months and take a starting point of 3 years’ imprisonment. The 1st defendant is entitled to a discount of one-third for his plea.

9.The 2nd defendant, I accept his mitigation put forward, I have taken into account his plea, his role in this offence and his previous clear record and I will take a starting point of 2 years’ imprisonment. He will be entitled to a discount of one-third for his plea.

10.Defendants, please stand up. The 1st defendant, you will be sentenced for this offence to 2 years’ imprisonment. 2nd defendant, you will be sentenced for this offence to 1 year and 4 months’ sentence.