HKSAR v. Chan Sze Kong and Another

DCCC1030 & 1170/2011
(Heard together)

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 1030 OF 2011

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HEARD TOGETHER WITH

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 1170 OF 2011

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HKSAR

v.

Chan Yiu-hung

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Reasons for Sentence

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1.D1 and D2, you each pleaded guilty at an earlier stage to this one offence of burglary. D3, you were convicted after trial, that offence being contrary to sections 11(1)(b) and (4) of the Theft Ordinance, Cap. 210.

2.D1 and D2, you had pleaded guilty at an earlier hearing and admitted the brief facts before my colleague, Deputy District Court Judge Lam.  Today you have reconfirmed your pleas of guilty and your admission of the facts.

3.The facts themselves have been referred to at great length by me in my verdict of today and I do not intend to dwell upon them.  Briefly, what happened is that under the direction and supervision of D3, you D1 and you D2, entered a restaurant and stole from there.  What was taken was a safe and its contents along with some cash.  The total value of the cash seems to be about $60,000.

4.D1, you admitted to 21 previous convictions, two of which involved dishonesty.  D2, you admitted to 18 previous convictions, four of which involved dishonesty, and D3 to 10 previous convictions, six of which involved dishonesty.  In fact, you are at the moment serving a sentence of imprisonment for which your earliest date of release, I am informed, is 25 January next year.

5.Mr Lee, on behalf of you, D1,  entered mitigation.  He reminded me that the usual starting point for the burglary of non-domestic premises is one of 30 months’ imprisonment but so far as you are concerned, D1, despite this being a joint enterprise, there was no lengthy period of premeditation, you were phoned and went to the premises.  Mr Lee produced and referred me to the authority of Z v HKSAR which is a Court of Final Appeal decision No. FACC9/2006.  That authority deals with the level of discount or the enhanced discount that should be afforded to those who assist the prosecution and the factors to be taken into account.  He suggested that you, D1, fell within the category of a supergrass and asked me to consider a maximum discount being two-thirds.  He told me that you had been subjected to violence in prison which may or may not be related to the present matter, that you had informed both on D2 and D3.  He said on a personal level that you are 40 years of age, educated to Form 6 and you have a girlfriend and a baby.  He asked me for maximum leniency pointing out that your family has had to go abroad for their own safety.

6.On behalf of you, D2, Mr Polson entered mitigation.  He told me that you are 56 years of age, single and educated to Form 5.  You had attended fairly reputable schools until the age of 18 or 19. You had had various jobs throughout your life, that your main problem of life was your addiction to drugs, especially Ice, that you were now taking steps to cast off that affliction; certainly you were not the ringleader in this case; that whilst on remand you had received a threatening letter and had been placed on special watch.   He asked me, despite your poor record, not to go beyond the usual 30 months starting point.  He too suggested that you could fall within the category of supergrass.

7.Mr Cahill then entered mitigation on behalf of you, D3.  You are the youngest of the three, being aged 31, you are a married man whose employment prior to remand was a cross-border salesman, that the sentence, as I have already said that you are serving, provides for an earliest date of release at 25 January of next year.  He submitted that given the personnel of the burglars, the lack of equipment, this was not a sophisticated burglary by any means.  Also, that you should not be viewed as a sole ringleader given the presence and actions of Lan To Yee.  He referred me to a case which was not named where a starting point of 40 months was approved for the burglary of goods worth $420,000.  The present case yielded but $60,000. He invited me to impose a sentence which would not crush you and by implication referred to the totality principle.

8.I turn now to the sentences themselves.  D1 and D2, I do take into account the extreme assistance that you have afforded to the prosecution.  You fulfilled your promised obligation to assist and thereby led to the conviction of D3.  I accept, without casting any aspersions on anyone in this court that you do feel threatened.  I note you both have very poor records though you, D1, this is only your second conviction for offences of dishonesty.  In my opinion you are borderline for the supergrass category.  I deem therefore that the appropriate discount should be one of 50 per cent.  I take as a starting point the normal 30 months.  That will be reduced to 15 months in each case.

9.D3, your position is somewhat different.  You have a poor record involving dishonesty.  On the facts upon which I convicted you, you were a ringleader if not the ringleader.  However, I do note that you are only 31 years of age and that the sentence I impose is one that should not be a crushing sentence.  I note therefore that the earliest date of release on the present sentence is 25 January of next year.  On the present charge you will be sentenced, given your role, to 34 months’ imprisonment, however, applying the principle of totality, 16 months will be concurrent and 18 months consecutive.