HKSAR v. Hui Yee Lung

DCCC811/2011

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 811 OF 2011

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Reasons for Sentence

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1.Of the 11 charges of burglary laid against him pursuant to section 11(1)(b) and (4) of the Theft Ordinance, Cap.210, the defendant enters a plea of guilty to seven, namely, Charges 1, 5 and 7 to 11, the rest being left on court file, marked “not to be proceeded with without the leave of the District Court or that of the Court of Appeal.”

Facts

2.The facts to which he agrees are as follows.

3.On 14 May 2011, a police officer in civilian clothing saw the defendant behave in a suspicious manner near a staircase of Sir Run Run Shaw Building of Baptist University.  The officer intercepted him and found in his possession a mobile phone, an Octopus card and some cash, belongings of a Director of Finance of the University.  The defendant confessed he had entered a room of the building to steal those items (Charge 11). 

4.Subsequent police investigation revealed that in October 2008, the defendant had entered a Social Service Centre in Wan Chai to steal about $300, two notebook computers, one digital video camera, and five Octopus cards (Charge 1).

5.On 25 April 2011, the defendant broke into Rooms 1001 and 1003 of Ho Sin Hang Engineering Building of the Chinese University of Hong Kong, and stole 15 notebook computers, one mobile phone, and one digital camera (Charge 5). 

6.On 1 May 2011, he broke into Room 702 of the Wing Lung Bank Building for Business Studies of Baptist University and took away around $150, one notebook computer, and one bundle of keys (Charge 7). 

7.About a week later, he entered as a trespasser the office of Home Affairs Department at the Shatin Government Offices, and stole about $2,000, six gift coupons, four cake coupons, and one bag (Charge 8). 

8.On 10 May 2011, the defendant returned to Baptist University and broke into, firstly, Room 901C of Sir Run Run Shaw Building to steal about $600 and one notebook computer (Charge 9), and secondly, Room 734 and stole three notebook computers (Charge 10).

Conviction

9.By pleading guilty to the charges, the defendant admits entering as a trespasser the respective premises to steal.  The court finds the defendant guilty of Charges 1, 5 and 7 to 11.

Defendant’s Records

10.The defendant has had altogether ten criminal records before his current convictions. 

11.At 16, he committed a serious offence of theft for which he was sentenced to the Detention Centre. 

12.A year later, he was found guilty of five charges of burglary and was sentenced to the Training Centre. 

13.Barely three months after that conviction, another record of burglary was entered against him.  The date was 25 January 1994, at which time the defendant was almost 18. 

14.Two and a half years later, he was once again brought before the court on two charges of burglary on 15 August 1996; he was then 20 and was sent to the Training Centre for the last time. 

15.On 22 June 1999, just less than three years after that conviction, he was charged to appear before the District Court on a total of ten charges of burglary and four charges of theft, for which he was sentenced to a term of imprisonment of four years.  He was then 23.

16.Slightly under four years of the passing of that sentence on him by the court, the defendant, who has turned 27 by then, was prosecuted, in addition to other counts, on three charges of burglary.  On that occasion, he was sent to prison for three years. 

17.On 30 July 2005, i.e., two years and three months later, another conviction respecting three incidents of burglary was recorded against him.  A period of three years’ imprisonment was imposed. 

18.Two years and one month later, the defendant found himself before a court of law again, charged with an offence of burglary.  By then he was 31 years old, and a sentence of two years’ imprisonment was imposed on him. 

19.The tenth criminal record was entered against him on 13 August 2009, i.e., within two years of his ninth conviction.  He was convicted of three charges of burglary and one charge of going equipped for stealing.  His sentence was reduced on appeal to three years and eight months’ imprisonment.

20.The defendant is now 35 years old.  He committed the fifth charge in the instant case, a charge of burglary, within three weeks of his release from prison. 

Mitigation

21.Counsel for the defence puts forward the following matters for the court’s consideration.  In view of the defendant’s poor records, the only realistic mitigating factor is his guilty plea.  The defence asks the court to adopt as low an overall starting point as the circumstances of the offences permit, having regard to the following facts:

(1) during the police inquiry, the defendant volunteered information on the burglaries he had committed;

(2) he had acted alone;

(3) no heavy equipment was used;

(4) the police relied on the fingerprint evidence in support of Charge 1, which evidence should have been available before the defendant’s last conviction of 13 August 2009.

Discussion

22.In SJ v Chan Tsz Lung CAAR 4/1998, the appellant acted in concert with another man and broke into schools and educational institutions on 15 occasions to steal whatever cash and valuables they could find.  On a review application filed by the Secretary for Justice, the Court of Appeal adopted an overall starting point of five years for the burglary offences.  It was recorded that the appellant was 24 and had had numerous convictions for offences involving dishonesty.

23.In HKSAR v Cheng Wai Kai CACC 338/2007, the Court of Appeal said:

“14. The proper starting point for sentence in a case of burglary of non-domestic premises is 30 months’ imprisonment (See R v Wong Man unrep CACC372/1992).

15. The starting point can be adjusted upwards if there are aggravating circumstances such as; (1) the offence is carefully planned and skillfully executed involving the use of heavy instrument or equipment; (2) the offence is committed by two or more people; (3) the offence targets at substantial premises and involved substantial properties; (4) the offender is a professional burglar and not just an opportunist; (5) the offender has previous convictions, particularly previous conviction of similar nature, and (6) the offender commits multiple offences.”

24.In that case, a drug addict with no previous records of burglary was adjudged a professional burglar, who committed five burglaries, actual and attempted, with substantial planning and equipment.  A starting point of five years adopted by the trial judge was not disturbed on appeal.

25.In HKSAR v Fan Kit Hung CACC 62/2009, the Court of Appeal added another factor to the list of aggravating circumstances referred to in Cheng Wai Kai’s case, namely, substantial damage to the victimized premises or to things in it.  A 6-year starting point was adopted on account of multiplicity of offences committed by a professional burglar.

26.In the court’s view, the three cases discussed above and relied upon by the defence are clearly distinguishable from the instant case; none of them concerned a professional, recidivist burglar. 

27.The list of aggravating circumstances is never closed.  In the words of the Court of Appeal in Fan Kit Hung’s case,

“the court in Chan Tsz Lung was not purporting to place an upper limit on the totality of sentence for multiple burglary offences. That quite simply could not be so given the variation in circumstances and aggravating factors possible.”

28.The Court of Appeal has in that case categorically reaffirmed the entrenched common law principle that sentencing is an art rather than an exact science.  Except for cases where the sentence is prescribed by the law, every step in the sentencing process necessarily involves the exercise of a discretionary power, including the selection of a starting point and reduction of sentence on account of expression of remorse.

29.The court notes the following aggravating circumstances in the instant case:

(1) for the last two decades, the defendant has committed offences of burglary almost as soon as he was released from a place of custody, be it the Detention Centre, the Training Centre, or the prison, and the guideline sentences imposed on him over a period of some 20 years have failed to achieve deterrence on him;

(2) he targeted universities, and this is shown by the facts that the three counts of burglary he was convicted of on 13 August 2009 took place at universities, and that five out of the seven burglaries he stands convicted before this court took place also at universities;

(3) he targeted valuable items with significant re-sale value;

(4) notebook computers are indispensable tools of learning for university students; if belonging to the teaching staff, they may contain course material compiled over the years; and the notebook computers the defendant has stolen from universities may contain priceless research material accumulated over lengthy periods;

(5) notebook computers, mobile phones, and digital cameras may contain personal data and pictures, which can be difficult, if not impossible, to replace;

(6) the notebook computers stolen from the service centre may contain sensitive and restricted information;

(7) the defendant is a professional burglar; and

(8) he managed to steal a total of 15 notebook computers in Charge 5; this suggests at least some degree of planning and organization.

30.Counsel for the defence explains that the defendant committed the burglaries shortly after he was released from prison because he did not want to seek help from his father and others.  In the court’s view, the defendant has no excuse whatsoever for not trying seriously to turn over a new leaf.

31.There is a clear public interest in the protection of universities - they are places of highest learning in Hong Kong - and of their students from burglars who target their research engines and tools of learning. 

32.The court must not give to a recalcitrant offender the wrong impression that the more crimes of a similar nature committed by him before he is caught again, the less on average he would get punished for doing them.

33.In all the circumstances, the court is of the view that an overall starting point of seven and a half years’ imprisonment would be appropriate to reflect the criminality of the seven charges and to achieve deterrence on the defendant. 

34.Apart from the defendant’s guilty pleas, nothing in his personal and family circumstances would warrant any further discount. But is there true remorse in his case? 

35.In the court’s view, there are two components in an expression of true remorse: firstly, the offender must sincerely reflect on his past misconduct, and secondly, he must pledge solemnly not to re-offend.  Any expression of remorse without the second limb is but lip-service. 

36.The defendant in this case re-offended within the month of his release from prison, and he did so as an extension of a criminal pattern of life over some 20 years.  In the court’s view, when he committed the offences in this case, he must have counted upon the clemency of a sentencing court to accord him with one-third discount on a plea of guilty; this is a special circumstance justifying a departure from this sentencing norm. 

Conclusion

37.In the result, the court would adopt a starting point of 33 months for all the charges, except Charge 5 for which a starting point of 36 months would be appropriate. 

38.The sentences are all reduced by 20 percent to reflect the defendant’s guilty pleas.  For each of Charges 1 and 7 to 11, the defendant is sentenced to a term of imprisonment of 26 months, and for Charge 5, he is sentenced to 28 months.

39.Having considered the totality principle, the court orders that -

(a) the sentences for Charges 7 and 9 should be served concurrently, making a sentence of 26 months for the two charges; and the sentences for Charges 10 and 11 should likewise be served concurrently, but 12 months of this concurrent sentence should be served consecutively to the 26 months for Charges 7 and 9, making a total sentence of 38 months’ imprisonment for the four charges;

(b) 12 months of the sentence for Charge 8 should be served consecutively to the 38 months’ imprisonment for Charges 7 and 9 to 11, making a total sentence of 50 months’ imprisonment for the five charges;

(c) 22 months’ imprisonment of the sentence for Charge 5 should be served consecutively to the 50 months for Charges 7 to 11, resulting in a total sentence of 72 months for the six charges; and

(d) the 26 months for Charge 1 should be served concurrently to the sentence for the rest of the charges, leaving the final sentence at 72 months’ imprisonment.

Order

40.The defendant is sentenced to a term of imprisonment of six years. 

41.The society would no doubt beseech the defendant to seriously consider mending his life and to give our university students a chance to pursue higher education in peace. 

Please refer to CACC406/2011 for the relevant appeal(s) to the Court of Appeal.