HKSAR v. Lui Wing Tung

(DRAFT) DCCC581/2011

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 581 OF 2011

----------------------

----------------------

--------------------------

Reasons for Sentence

--------------------------

1.The defendant has pleaded guilty to a charge of burglary involving domestic premises. The offence was committed on 26 April 2011 and the premises concerned were the front portion of the 3rd floor dwelling at No.17 Ho Man Tin Street in Kowloon.

2.The premises were vacated on the morning of 26 April at about 7.35, and when one of the occupants returned at 2.50 in the afternoon, he discovered that the premises had been ransacked and items were misplaced.  Prising marks were found at a window of the premises and the incident was reported to the police. 

3.In a sweep of the area at about 3.30 in the afternoon, two officers saw the defendant at the junction of Waterloo Road and Peace Road walking quickly towards the police officers, but he kept checking his bag and looked suspicious.  He was approached by the officers, and in a bag which he was carrying  the officers found a screwdriver and the defendant admitted that he had entered the premises, the subject of the charge, and intended to steal from them.

4.Under caution the defendant admitted that he had entered the premises by the window, and claimed that once inside he had felt reproachful about having entered the premises and left empty-handed.

5.In a video recorded interview, he admitted that he had taken the screwdriver from his home - he lived in Tin Shui Wai - and had put the screwdriver into a bag and took transportation to Ho Man Tin.  He was also wearing gloves.  He went to the roof of the premises and climbed down to the window from the roof.  He said he subsequently disposed of the gloves. 

6.The defendant has an appalling record.  He has 19 previous court appearances, 21 of them involved offences of dishonesty, 13 involved burglary or attempted burglary.  As recently as 2008 he was sentenced to 26 months’ imprisonment for burglary; in September 2010 he was sent to the Drug Addiction Treatment Centre for an offence of possession of dangerous drugs and released from there in February of this year, a couple of months before this offence.

7.The defendant was born in Hong Kong, he is aged 44 and he was educated to Form 3 level.  He has worked on and off as a construction site worker and he was unemployed at the time of his arrest.  He is married, and at the time of the offence he was living with his mother, his wife and his two children, a daughter aged 17 and a son aged 11.  In 1992 he underwent heart surgery.

8.Mr Shum, the defence counsel, had the difficult task of trying to mitigate this offence and everything that could be said in mitigation was urged upon the court by Mr Shum. 

9.The two essential features of mitigation were the fact that the defendant pleaded guilty, and what seems clear from the facts is that having gone to all the trouble of breaking into these premises, he seems to have changed his mind once he got inside.

10.As counsel has rightly acknowledged, the usual sentence, the usual starting point for domestic burglary is 3 years’ imprisonment.  Given the 13 previous convictions for burglary and the sentences imposed previously on the defendant, that sentence does not appear to be a deterrent for this particular defendant. 

11.On the day of the offence he had taken transport to the area looking for premises to burgle and he was equipped with gloves and a screwdriver.  He is a professional burglar.  He had entered the premises by accessing the roof of the premises and climbing down from the roof. 

12.I have considered the question of increasing the usual starting point to deter this particular defendant from continuing to commit these offences.  However, it does seem clear on the facts of this case that the defendant did change his mind once inside the premises and I therefore propose not to increase the usual starting point on this occasion.  

13.The defendant will be given full credit for his guilty plea.  I take as a starting point a sentence of 3 years’ imprisonment and reduce that to 2 years to reflect the defendant’s plea.