HKSAR v. Li Ho Yin

DCCC 266/2012

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 266 OF 2012

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REASONS FOR SENTENCE

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1.The defendant, Li Ho Yin, came before me yesterday and pleaded guilty to one charge of going equipped for stealing, contrary to s27(1) of the Theft Ordinance, and another charge of assault occasioning actual bodily harm, contrary to Common Law and punishable under s 39 of the Offences Against the Person Ordinance.

2.On 28 December 2011, the defendant was arrested by the police at around 6 am in the morning following a struggle with them at a rear lane of Windsor Mansions, No 17 Austin Avenue, Tsim Sha Tsui, Kowloon (“the Building”).  In fact he was behaving suspiciously by climbing and standing at a scaffolding in the rear lane outside the window of Flat G of the 1^st Floor of the Building.  The domestic helper of the flat was woken by the noises of the window of her room being opened.  The defendant was wearing a black-and-white cap outside the window and later found to have on his person a crowbar and a pair of gloves.  The domestic helper screamed and alerted her employer.  The employer then reported the incident to Mr Li Chan, aged 67, who was the security guard of the Building.  They reported the case to the police officers who patrolled the area.  Meanwhile, the defendant was spotted standing on top of the cooling unit of an air-conditioner of the Building.  He jumped down from the cooling unit and rushed into the Building through the rear entrance.  The defendant also resisted Mr Li who was stopping him from running away by pushing him with both hands at his chest causing him to fall onto the ground.

3.The defendant is a man of 26 years of age and has 7 previous criminal records starting from 2006 with 5 appearances in court and his last three convictions in September 2010 were all of the offences of burglary.  He has been sentenced to a total of 23 months’ imprisonment for those offences.  He was only released from prison in September 2011.  He is still single and lived with his parents.  He insisted that he was not a drug addict although he had three previous records for possession of dangerous drugs between 2006 and 2009 and he has been sentenced to the DATC twice.

4.Mr Michael Leung, counsel for the defendant, accepted that the defendant committed the present offence only three months after he was released from the prison.  He said that the defendant tried to reform himself by looking for a decent job but all that he was able to secure was a casual delivery work.  He said the defendant was very remorseful and regretted for causing the injury to the security guard.  The defendant explained that he did what he did only after the security guard had pushed him first.  Mr Leung also told me that the defendant was in fact “hesitated” when he was standing outside the window of the 1^st floor of the Building at the scaffolding.

5.In sentencing, for the first offence, I bear in mind that the maximum sentence for actual burglary is 14 years whereas the maximum sentence for going equipped for stealing is 3 years.  However, as pointed out in The Queen v Tsang Wing-ming CACC 315/1989, a case also concerning a defendant who was convicted of going equipped for stealing after trial for climbing a scaffolding at a rear lane with a screwdriver, Cons V-P., had said:-

“The nature of the equipment carried is a matter for consideration. But in a crime of this unusual and "preventive" nature, of more importance is the nature of the Defendant. The judge below concluded that the Defendant in this instance was a professional burglar. We have no hesitation in agreeing and, bearing that in mind. We do not think the sentence of two and a half years for going equipped for stealing was manifestly excessive.”

6.The present defendant is also a professional burglar.  I also disagree that the defendant has hesitated at all in the course of committing the offence.  According to the facts which were agreed by the defendant, the domestic helper was woken by the sounds of her window being opened.  Here is a man who has just served a sentence of just under two years for three burglary offences.  In less than three months after his release, he wore his cap and a pair of gloves and he had equipped himself with a crowbar and resorted to committing the same crime to solve his financial problem again.  Seemingly, his last sentence has little deterrent effect on him, if any.  The proper starting point for a domestic burglary for a first offender of full age is three years’ imprisonment (see HKSAR v Lau Pang [2004] 3 HKLRD 565) and being a repeated offender, the proper starting point would have been at least 6 months more if the defendant was charged with burglary or attempted burglary.  It is fortunate for the defendant that the prosecution did not see fit to charge him with attempted burglary and I was told that one of the reasons was that the domestic helper has declined to testify in court.  The facts of the present case and the background of the defendant are indeed very similar to the case of Tsang Wing Ming (supra) and accordingly, I would also adopt a starting point of 2 years and 6 months.

7.For the second offence, the maximum penalty is 3 years’ imprisonment.  Despite his age, Mr Li was acting bravely and did his job to try to prevent the defendant from leaving the Building in the circumstances.  After the incident, he was taken to the hospital for treatment.  He sustained localized tenderness over lumbar spine and paraspinal muscles at lumbar region.  X-ray showed a collapse of second lumbar vertebra.  He was hospitalized for three days and was given a sick leave for about three months.  I was told that the security guard has resumed his duty but he was still suffering from back pain.  The attack by the defendant on an aged old security guard to avoid apprehension, even only by a push at his chest, was mean and nasty and has to be condemned.  Even it was a spontaneous reaction by the defendant to push the old man back in his attempt to flee; I still consider a starting point of 9 months is appropriate to reflect the gravity of the matter.

8.The sentences on both charges would be reduced by 1/3 to reflect his guilty pleas.  The sentence on the first charge is therefore 20 months and for the second charge 6 months.  The two charges are separate and distinct and normally call for consecutive sentences.  However, because of the principle of totality, I order that only 4 months of the second charge to run consecutively to the first charge and the rest concurrent.  The total sentence on both charges is therefore 24 months’ imprisonment.

Please refer to CACC240/2012 for the relevant appeal(s) to the Court of Appeal.