HKSAR v. Lau Bing Kwan

DCCC1275/2009 & 662/2010(CONS)

IN THE DISTRICT COURT OF THE

HONG KONGSPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 1275 OF 2009 & 662 OF 2010 (CONSOLIDATED)

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Reasons for Sentence

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1.The defendant pleaded guilty to two charges of burglary, contrary to section 11(1)(b)and (4) of the Theft Ordinance, Cap.210.

2.The Summary of Facts which was admitted by the defendant revealed that on 15 November 2008, PW2 secured the roller shutter of a garage in Wong Tai Sin with a padlock, and he then left. When PW2 returned to the garage on 17 November 2008, he found that the roller shutter was prised open and there were signs of ransacking of the garage.

3.Upon checking, it was found that a total of HK$1,000 cash was missing. When the police arrived, three fingerprints were lifted. It was later confirmed that the one which was lifted from a plastic folder stored inside the same drawer from which the cash was stolen belonged to the defendant. This is the subject matter of the 1st charge.

4.The defendant was later arrested and was put on bail.

5.However, while the defendant was on bail, he committed the offence referred to in the 2nd charge, which happened in this way.

6.On 29 March 2010, PW9, who worked in a boutique in Yuen Long, locked the roller shutter of the shop at the close of the business and left.

7.The following day, when PW10, the boutique owner, returned, she found that there were signs of ransacking and some locked cabinets were prised open.

8.Upon checking, PW10 found that cash in the sum of HK$1,040 and RMB$8,000 was missing. A report was made to the police.

9.Meanwhile, in the small hours on 30 March 2010, the defendant was found acting furtively in Yuen Long. He was intercepted and cash in the sum of about HK$1,350 and RMB$1,396 were found on him. There was, amongst the cash found, a handwritten note written by PW10.

10.The defendant was arrested, and under caution, he admitted that he had stolen the money from the boutique.

11.The defendant is now aged 35 and had Form 1 education. He is divorced.

12.Before his arrest, he worked as a hawker, earning about HK$8,000 per month, and was living with his parents, his son aged 18, and his girlfriend.

13.He was once a drug addict, but Mr Pun, for the defendant, told the court that quitted his drug habit in 2006.

14.The defendant was convicted on seven previous occasions.

15.He started transgressing the law in 1992 by committing robbery offences. He then had a couple of drug related offences.

16.In 2003 and 2004, he respectively committed the offences of going equipped for stealing and burglary.

17.In mitigation, Mr Pun, for the defendant, said that the burglaries committed by the defendant were simple ones with him acting alone and with no sophisticated equipment used. No one was present in the premises at the time.

18.There are well-established guidelines for sentencing in respect of a burglary of non-domestic premises, which is one of 2½ years. See, for example, AG v Lui Kam Chi [1993] 1 HKC 215.

19.Therefore, the starting point which I am going to adopt for Charge 1 is 2½years.

20.However, as the defendant committed Charge 2 while he was on bail, that was an aggravating factor, and I am going to increase the starting point to 33 months for this charge.

21.The defendant pleaded guilty and he will be given one-third reduction in sentence. Other than that, I do not see any other mitigating factors in this case.

22.So, on account of the defendant’s pleas, for Charge 1, the term of 30 months is reduced to one of 20 months, and for Charge 2, the term of 33 months is reduced to one of 22 months.

23.Having considered the facts of this case, the defendant’s background and the matters put forth on his behalf, that the second offence was committed whilst the defendant was on bail, and having considered the totality principle, I am of the view that an overall sentence of 27 months for these two offences is appropriate.

24.To achieve this, I order that 7 months of the 22-month term imposed in respect of Charge 2 is to be served consecutively to the term passed for Charge 1, making a total of 27 months’ imprisonment.