HKSAR v. Lau Hiu Man

DCCC722/2012

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 722 OF 2012

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Reasons for Sentence

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1.The Defendant has pleaded guilty to three charges, the first two being burglary, contrary to section 11(1)(b) and (4) of the Theft Ordinance, Cap.210. These two burglaries occurred on the same day not long after each other and involved the same premises. The 3rd charge, the defendant pleaded guilty to, is assault occasioning actual bodily harm, contrary to Common Law and punishable under section 39 of the Offences against the Persons Ordinance, Cap.212. The victim of that charge is an occupant of the premises of Charges 1 and 2.

The facts of the case

2.The victim of Charge 3 and her family lived in two rooms side by side of Block 10, Shek Lei (II) Estate, Kwai Chung.  The two rooms were occupied by members of her family.  She, her husband and one son lived in Room 526 whereas her three teenage daughters and a 20-year-old son lived in Room 527.  The Defendant lived in the same estate but a different block.

3.At about 6 am on 15 June this year, the defendant was wandering around this estate.  He saw that the entrance to Block 10 was unlocked and once he had seen this he took the opportunity to enter Block 10 with the intention to steal from within.  When he walked past Room 527, the room lived in by the three teenage daughters and one son, he saw that the door was open, not locked.  At this time of morning, all the occupants were asleep.  He entered Room 527 committing Charge 1 and stole an item of clothing from within. 

4.During the course of this burglary, the occupants did not wake up.  Defendant left only to discover that there was nothing valuable inside this item of clothing.  So he had the audacity to return to the same premises to see if there was anything else to steal.  After he entered again, committing Charge 2, PW1, the occupants mother, walked in on him.  She disturbed the defendant and in the defendant’s rush to escape, he pushed her and caused an injury; committing Charge 3.  Luckily, the victim was not seriously injured but her injury did draw blood. 

5.Defendant was arrested later the next day.  In fact, he was at that time on bail for a drug offence.  He had breached the conditions of that offence’s bail and a warrant had been issued for his arrest.  After his arrest, he admitted committing the three offences of this case.  For that drug offence, he is presently serving a drug addiction treatment centre order.

6.Defendant is not a man of clear record; in fact, he is a repeat offender, a recidivist.  He has many previous convictions of which there are 24 offences of burglary.  Other convictions involve mainly drug offences. 

7.The Defendant’s best mitigation today is his plea of guilty.  I have heard full mitigation including the defendant’s background. 

8.Defendant is now 38 years old and at the time of these offences was unemployed.  I have been told that he had no financial means and was desperate. 

9.Normally, a 3-year term of imprisonment would be a starting point for a domestic burglary in the absence of any aggravating or mitigating factors. 

10.Having heard defence counsel, I see no mitigating factors.  However, from the facts of this case and the defendant’s background, I find there are aggravating factors.

11.Firstly, this home was clearly occupied and the occupants could have been alarmed or confronted by the presence of the defendant in their home.  In fact, in the second burglary, a victim was confronted; an occupant was confronted by the defendant.  Moreover, this 2nd charge was a repeat visit to the same premises.  He went back to burgle the same premises.  As I said earlier, he had the audacity to return again.  In addition, the defendant is a persistent offender.

12.Where a person has a previous poor record for similar offences, a court would be justified in imposing a substantially higher sentence.  I refer myself to the authority of HKSAR v Chan Pui Chi [1998] 2 HKLRD 830 at 833 paragraphs F to I, referring to The Queen v Billam & others [1986] 82 Cr App Rep 347.

13.These factors above justify, in my view, a higher starting point than the norm, the norm of 3 years.  I find aggravating factors exist.

14.After considering the facts of the case, mitigation put forward and the aggravating factors I find relevant, for the burglary offences, Charges 1 and 2, I will take a starting point of 4 years’ imprisonment.  For the 3rd charge, I will take a starting point of 18 months’ imprisonment. 

15.The Defendant is entitled to a discount of one-third for his plea of guilty.  I, also consider the totality principle. After discount, defendant is sentenced to, Charge 1, 2 years and 8 months’ imprisonment; Charge 2, again 2 years and 8 months’ imprisonment; Charge 3, 1-year term of imprisonment. 

16.For Charge 2, of this 2 years and 8 months, I will order that 4 months be served consecutively to Charge 1 and the balance concurrent.  For Charge 3, of the 1-year term of imprisonment, 2 months will be served consecutively to Charge 1 and the balance concurrent.  In total, defendant is sentenced to 3 years and 2 months. 

Please refer to CACC396/2012 for the relevant appeal(s) to the Court of Appeal.