HKSAR v. Ng Wai Lun

DCCC 1150/2010

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 1150 OF 2010

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REASONS FOR SENTENCE

1.The defendant pleads guilty to one charge of burglary, contrary to section 11 of the Theft Ordinance, Chapter 210 (charge 1) and one charge of going equipped for stealing, contrary to section 27 of the Theft Ordinance (charge 2)

2.In summary at about 1100 hours of the 26th February 1995 Madam Leung and her family left their home in Shui Pin Wai Estate in Yuen Long securely locked. When Madam Leung returned home at about 1610 hours she found the iron grille and door had been prized open and the home ransacked.  Property to the value of $23,440 was stolen as particularised in charge 1. 

3.On the 9th March 1995 at about 1200 hours the defendant together with another male was intercepted by the police outside Wah Ping House in Yuen Long.  The defendant was found in possession of a crowbar and a pair of gloves.  Under caution the defendant admitted he was planning to commit burglary together with his friend in Wah Ping House and were looking for a target (charge 2). 

4.Under further caution the defendant admitted committing a burglary at the Shui Pin Wai Estate and that some of the stolen property was still in his home.  The police went to the defendant’s home and recovered a pair of loudspeakers, which were subsequently identified by Madam Leung as property stolen in the burglary of her home.  The defendant could not remember the exact location of the burglary but led the police to the home where he stole the property, which was the home of Madam Leung.  

5.The defendant was granted police bail to appear in court on the 13th March 1995.  The defendant however failed to attend court having left for the Mainland on the 11th March.  The defendant surrendered to the Mainland authorities on the 20th August 2010 after which he was returned to Hong Kong.

6.In passing sentence I have carefully considered everything said on behalf of the defendant by Mr Chan, including that the defendant surrendered because he is determined to lead a new life and therefore wished to bring an end to the proceedings. 

7.The correct starting point for a single burglary of domestic premises committed by a first offender of full age where there are no aggravating or mitigating features is 3 years imprisonment    (see Attorney General v LUI Kam-chi [1993] 1 HKC 215), which guideline was in place when the defendant committed the burglary.

8.There are no guidelines for going equipped for stealing.  In The Queen v TSANG Wing-ming CACC 315/1989 the Court of Appeal held that whilst the nature of the equipment is a matter of consideration in a crime of this unusual and preventive nature, of more importance is the nature of the defendant.  I am satisfied in the circumstances of this case that a starting point of 1year is appropriate. 

9.Both offences were committed whilst the defendant was on bail for an offence of assault.  Commission of offences on bail is an aggravating feature of sentence for which a higher starting point may be appropriate        (see for example HKSAR v YUEN Gang-shing CACC 303/1997).  On the other hand without the defendant’s admission he burgled the home of Madam Leung the police may not have been able to proceed on a charge of burglary.  In the circumstances I am satisfied these two factors balance each other out without any increase or decrease in the starting points.    

10.The two offences committed 11 days apart are separate and distinct in time and place for which consecutive sentences are appropriate.  Clearly the defendant was intent on committing burglary of residential premises that were unoccupied.  I am satisfied an overall starting point of 3 years and 4 months imprisonment is appropriate.

Surrender

11.The defendant surrendered to the Mainland authorities, which is to his credit.  The courts have said surrender to authorities is to be encouraged.  The surrender must however be viewed in context that the defendant absconded in 1995.

12.In HKSAR v CHOW Tak-fuk CACC 428/2004 the defendant absconded to the Mainland for some 12 years when he returned to Hong Kong and was intercepted by the police at the border.  The defendant said he surrendered in that case because he wished to obtain documents in Hong Kong to legitimize his marriage on the Mainland.  The Court of Appeal in upholding a discount of only 25% on a plea of guilty said:

“Whilst the courts must always encourage persons to surrender, so that some credit for that fact will normally be given, those who might be minded to flee should not be led to believe that if ultimately they return they will be in no worse position than had they not fled in the first place.”

13.I am satisfied a discount of only 25% is also appropriate in this case, which results in a sentence of 2 years and 3 months for the burglary and 9 months imprisonment for going equipped for stealing and making an overall sentence of 2 years and 6 months. 

Restitution

14.Albeit at a very late stage the defendant has made full restitution in respect of the burglary in the sum of $23,440.  In recognition of this I am satisfied the sentence on the burglary charge is to be reduced by  3 months to 2 years imprisonment making an overall sentence of 2 years and 3 months imprisonment.

15.The defendant is sentenced as follows:

Charge 1 – 2 years imprisonment; and

Charge 2 – 9 months imprisonment;

3 months consecutive and 6 months concurrent to charge 1.

16.I am satisfied a total sentence of 2 years and 3 months imprisonment properly reflects the defendant’s criminality on the two charges. 

17.I note the defendant was sentenced in December last year to 4 months imprisonment for the assault, which sentence the defendant has now served.  The assault offence is entirely separate and distinct from the present offences of dishonesty.  A wholly consecutive sentence would have been appropriate had the defendant been sentenced on all three charges at the same time, making a total sentence of 2 years and 7 months imprisonment, which I am satisfied properly reflects the defendant’s criminality on all three charges.