HKSAR v. Lee Man Chung, Michael
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DCCC 1141/2012 IN THE DISTRICT COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION CRIMINAL CASE NO. 1141 OF 2012 ____________
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REASONS FOR SENTENCE The defendant pleaded guilty to 2 charges of "Burglary". He burgled the same residential premises on 2 different occasions. Summary of Facts 2.Madam JIANG (PW1) was the tenant of Flat D, 2nd Floor, No.116 Tam Kung Road, Kowloon City ("the Flat"). 3.On 23 October 2012, PW1 found cash in the sum of RMB800 missing from the wardrobe in the Flat. 4.About 8:00 pm on 26 October 2012, PW1 returned to the Flat with a property agent, Mr. SHUM (PW2). They found the defendant sleeping therein. The Police was alerted. PW2 identified the defendant as the former occupant of the Flat. PW1 confirmed no property missing on this occasion. 5.SPC 52763 arrived at the Flat later on the same evening and made enquiries with the defendant. The defendant admitted that he used the keys to the Flat, which he had kept, to enter the premises intending to steal. He also admitted that he entered the Flat on 21 October 2012 and stole RMB800 from the wardrobe. Upon search, 2 keys to the Flat were found on the defendant. 6.In his video interview, the defendant admitted that he rented the Flat from an ex-colleague and resided there between June and July 2011. He entered the Flat between 6:00 and 7:00 pm on 21 October 2012 using the keys he had kept. He stole RMB800 from the wardrobe out of greed. Thereafter, he exchanged the Renminbi into Hong Kong currency at a branch of the Bank of China. He then spent all the money on food and living expenses. On 26 October, he returned to the Flat again intending to steal money. An exchange invoice issued by the Bank of China was seized from the defendant. Mitigation & Sentence 7.The defendant is now 21 and has a clear record. His mother passed away when he was 2 and he was looked after by his maternal relatives. The defendant came to Hong Kong from the mainland when he was 8 to live with his father. He began with P.1 and studied up to F.2. At the age of 16, he started to make his own living. He has had various jobs such as waiter and hair salon assistant. The defendant's father re-married around 1997. His relationship with his father is not good. A letter written by the defendant was placed before me; its contents are duly noted. 8.Regarding Charge 1, Mr. CHENG submitted that the defendant lost his job in September 2012. In October, he found a set of keys to the Flat and decided to go there to check whether he still had any personal belongings there.[1] He managed to enter the Flat using the keys he had kept. When he was trying to look for his personal belongings, he found the wardrobe open and saw some Renminbi inside. He took the money out of momentary greed. In relation to Charge 2, the defendant still could not find a job on that day and had no money. He therefore returned to the Flat to see if he could find some money. 9.Time after time, the court has expressed in very clear terms that being in financial difficulty (however serious) is no mitigating factor for committing a crime. Having no shelter or food is certainly not an excuse. In modern Hong Kong, there is sufficient social welfare protection for the poor to meet their basic needs. 10.I am aware of the defendant's age and clear record; however, in my view, none of the sentencing options suggested by Mr. CHENG is appropriate. It must have been a tremendous shock for PW1 discovering a complete stranger sleeping in her home the moment she set foot in the Flat. An immediate custodial sentence is inevitable.[2] I will adopt the normal starting point of 3 years' imprisonment for domestic burglary. A one-third discount is given for the guilty plea, reducing the sentence to 2 years. Apart from this, I see no other mitigating factors which warrant any further reduction. Hence, the sentence I impose for each charge is 2 years' imprisonment. 11.Charges 1 and 2 are just 5 days apart and the locations are the same.[3] Both offences are separate and distinct. Having considered the totality principle, I order 12 months in the sentence for Charge 2 to run consecutive to Charge 1; thus, arriving at a total prison term of 3 years for both charges.
[1] Despite having moved out of the Flat for over a year. [2] Bokhary JA (as he then was) held in AG v LO Ching Fai [1996] 1 HKC 747 "It is now well-established, as one sees from the decision of this Court in AG v. Lui Kam Chi [1993] 1 HKC 215, that three years' imprisonment is in general the appropriate starting point for a single offence of burglary of domestic premises committed by a first offender of full age in circumstances unattended by either particular aggravation or particular mitigation." (p.749 D to E) [3] The English Court of Appeal in R v Brewster & others [1998] 1 Cr.App.R.(S.) 181 held that repeated visits to the same premises constitute an aggravating feature in domestic burglaries. (pp.185 to 186) |
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