HKSAR v. Lui Bing Ching

DCCC 785/2014

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 785 OF 2014

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Reasons for Sentence

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1.The defendant has pleaded guilty to five offences of burglary and one offence of going equipped for stealing. The defendant has admitted the facts presented, and I have convicted him of the offences.

2.A brief summary of the facts admitted showed that the defendant has admitted to, as I say, committing a total of five burglaries between 25 October 2013 and 15 June 2014, an eight‑month period.

3.The five offences of burglary committed involved the burglary of five commercial premises in Wan Chai, Causeway Bay, and one also in Kwun Tong.

4.The defendant was finally arrested on 2 July 2014 in the evening when the final offence of going equipped for stealing was disclosed.

5.The defendant has admitted all the offences and described in video‑recorded interviews how he committed those offences, giving his what is described as modus operandi.

6.The facts that have been admitted show that the defendant has admitted to making away with about $115,500 worth of items, and they are portable technological items that can be sold easily, such as notebook computers, Macbooks, smartphones and the like, and some cash as well.

7.The offences were committed during the evening or at weekends when the shops were closed and empty of persons.  The defendant appears in the burglaries to have acted alone.  Forcible entry was gained.  The items stolen were later fenced for cash.  The offences disclose that items such as skeleton keys, a metal ruler, crowbars, a screwdriver and gloves were used to perform the burglaries.  The defendant also had used SD cards to store information which would be useful to him in the commission of burglaries.  The facts disclosed, as I said, that all entries to these premises appear to have been forced in some way, and damage was caused, although the repair costs are not too excessive.

8.The defendant does appear, as far as the facts are concerned, to have acted on his own during these burglaries, and the burglaries were committed in the months of October and February, April and May, and finally, in June.

9.The defendant has admitted his antecedents.  He is a 46‑year‑old man.  He has been convicted of burglary in the past:  on three separate occasions, committed a number of burglaries.  I believe there are a total of 21 previous burglaries, and one offence of going equipped for stealing.

10.The defendant in 2005 was sentence to imprisonment for 22 months, and that was the last occasion on which he was convicted of burglary before today.  The previous offences of burglary had been committed in 1995, 1998 and 2005, when the defendant was respectively aged 27, 30 and 37.  The defendant is now 46 years old, so there is a quite lengthy period now when the defendant has not stood convicted of any offence of burglary.

11.Dealing with the defendant’s personal circumstances, he resides in Causeway Bay.  His parents are the ages of 76 and 70.  He has an elder brother.  Following his release from prison for the offences in 2005, he has worked as a casual delivery worker since then, earning about six and a half thousand dollars per month.  I am told as a result of underemployment in the latter part of 2013, the defendant fell victim to the temptation to resume his burglary activities.

12.The defendant has made a full admission to everything and hopes, on release from these offences, to resume a career in a lawful endeavour.  As far as mitigation from the offences is concerned, I am pointed to the fact that the defendant appears to have acted alone; although the premises were damaged, the costs of reinstatement are limited; and although there is a degree of professionalism in the defendant’s approach to these offences of burglary, it is said they are, when taken as a whole, comparatively unsophisticated; and of course I must take into account the defendant’s plea of guilty.

13.The sentencing factor that I do have to consider in this case is the multiplicity of the offences over the period of time, a period of 8 months, which means that the defendant could be described over that period as being an habitual burglar.

14.The defence has very helpfully referred me to two authorities which deal with case where there has been a multiplicity of offences of burglary.  They are HKSAR v Fan Kit Hung CACC 62/2009, and HKSAR v Hui Yee Lung CACC 406/2011.  In the first case, a notional or overall starting point of 6 years was taken.  In the second case, it involved 11 burglaries at university premises, and again an overall starting point of 6 years was taken.

15.Because there is a multiplicity of offences, it involves a two-stage operation in sentencing.  The first is to determine the appropriate sentence in respect of each individual theft, and then adjust the sentences to achieve a correct overall totality for this series of offending, and the cases I have referred to are helpful in the second operation I must perform.

16.As far as the first operation is concerned, I must achieve the correct sentence in respect of each individual offence.  I have five burglaries of commercial premises.  A person of clear record who commits an offence of the burglary of a commercial premises can, on a plea of guilty, expect a starting point for sentence of 30 months’ imprisonment. I do consider that the defendant’s previous numerous acts of burglary in the past do constitute an aggravating factor for sentencing, although I do bear in mind that the defendant appears to have desisted from those offences for some substantial period of time.

17.What I shall do on each of the burglary offences - that is, 1 to 5 of the offences - I shall take a starting point for sentence of 33 months’ imprisonment, which involves an additional sentence of 3 months’ imprisonment for the aggravating factor.

18.In respect of the 6th offence, going equipped for stealing, again, it is the second offence for that matter.  I shall take a starting point for sentence of 27 months’ imprisonment.

19.After a one‑third deduction for plea of guilty, this leads to a sentence on Charges 1 to 5 of 22 months’ imprisonment, and Charge 6 of 18 months’ imprisonment.

20.I must now look at what one could call the overall starting point for the series of offences.  The cases that have been referred to me are useful, but of course in each case the factual circumstances and the factors relating to the defendant are different.

21.I consider that the overall starting point in respect of this series of offences should be one of 5½ years’ imprisonment, which is 66 months.  After a deduction for plea of guilty, of course that would lead to a sentence of 44 months’ imprisonment.

22.I consider that is the appropriate sentence, and I will achieve it in this way.  I am going to order that the sentences on the 2nd through to the 6th offence run concurrently to each other, but consecutively to the first offence, which gives an overall total of 44 months’ imprisonment.