區域法院（刑事）His Honour Judge D Yau9/4/2019[2019] HKDC 513
DCCC799/2018
A A
B B
DCCC 799/2018
C [2019] HKDC 513 C
D D
IN THE DISTRICT COURT OF THE
E HONG KONG SPECIAL ADMINISTRATIVE REGION E
CRIMINAL CASE NO 799 OF 2018
F F
G ------------------------------- G
HKSAR
H H
v
I YUEN YING YEUNG I
-------------------------------
J J
K Before: His Honour Judge D Yau K
Date: 10 April 2019
L L
Present: Miss Stella Lo, Public Prosecutor, for HKSAR
M Mr Michael Leung Lai Yin, instructed by Rowdget W Young M
& Co, assigned by the Director of Legal Aid, for the defendant
N N
Offence: Burglary (入屋犯法罪)
O O
P
--------------------------------------- P
REASONS FOR SENTENCE
Q Q
---------------------------------------
R R
1. The defendant pleaded guilty to one charge of burglary.
S S
T T
U U
V V
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A A
B B
Summary of facts
C C
2. PW1 was a tenant of Room 8, one of 10 rooms in a sub-
D D
divided flat on 1st Floor of No 935 Canton Road.
E E
3. At about 1:15 pm on 7 May 2018, PW1 left Room 8 with all
F windows and the door secured. She returned at 7:30 pm and found the door F
prized open. The place was ransacked and her Home Visit Permit, China
G G
Identity Card, Hong Kong driving licence, China driving licence, two bank
H cards, one credit card, RMB100 cash coupon and one television went H
missing.
I I
J 4. The case was reported. Upon investigation, fingerprints were J
lifted from a shoe box, matching those of the defendant on Police file.
K K
L 5. The defendant was located and arrested. Under caution, he L
admitted to burgling the room and stealing the properties mentioned above.
M M
The missing television was later found in the defendant’s residence upon
N N
search.
O O
6. In the subsequent cautioned interview, the defendant claimed
P P
that it was his first time going to Room 8 and that he committed the
Q burglary alone. He had forced open the wooden door and damaged the Q
lock to gain entry. He kept the television and discarded all the
R R
identification documents.
S S
T T
U U
V V
-3-
A A
B B
Previous convictions
C C
7. The defendant has 15 convictions from 4 previous court
D D
appearances. His first conviction was for theft when he was almost
E 16 years old. His second conviction was for robbery and he was sentenced E
on the same day to detention at the Rehabilitation Centre.
F F
G 8. 3 years later in April 2010 when he was 18 and a half, he was G
convicted of possession of a dangerous drug and was sentenced to
H H
detention at the Drug Addiction Treatment Centre (“DATC”). On 8 April
I 2011, he was sentenced again to the DATC for claiming to be a member of I
a triad society and wounding under s 19 of the Offences Against the Person
J J
Ordinance, Cap 212. He was 19 years and 4 months old.
K K
9. Just about 2 weeks later, he was sentenced for 10 charges of
L L
theft to the DATC, the sentence to run concurrently with the earlier DATC
M sentences. M
N N
10. The defendant managed to stay on the right side of the law for
O the next 7 years, until his conviction on 6 August 2018 for criminal damage O
when he was, again, sentenced to the DATC. He was released from
P P
detention on 3 April 2019 and transferred to Lai Chi Kok Reception Centre
Q pending being dealt with in the present case. He had finished serving the Q
sentence in that case.
R R
S 11. In addition to the above convictions, the defendant was S
arrested in June 2016 in relation to a case of conspiracy to defraud. He was
T T
granted Police bail but absconded on 5 June 2016. This conspiracy to
U U
V V
-4-
A A
B B
defraud case is still pending. The defendant, therefore, committed the
C present offence whilst on Police bail, and 2 years into his abscondment. C
D D
Mitigation
E E
12. The defendant is 27. He has fathered a daughter with his
F F
former girlfriend, but they have not kept in touch.
G G
13. The defendant was diagnosed as suffering from bipolar
H H
disorder in 2015 and requires medication and regular follow up treatment.
I I
14. The defendant lives with his present girlfriend, together with
J J
a 3-year-old girl and her mother at a building at No 1184 Canton Road.
K The defendant had come to know the mother and daughter before and they K
decided to rent the room together.
L L
M 15. Unfortunately, the mother has personal issues and the M
defendant would end up looking after the daughter a lot of the time. The
N N
defendant sees her as a god-daughter and they have a good relationship.
O O
16. The defendant moves house for other people from time to time
P P
to earn a living. His financial situation has not been good. The defendant
Q kept the television that he stole so that the girl can watch. It was not for Q
his personal benefit.
R R
S 17. Since his arrest, the defendant has started attending Bible S
school and has been learning about proper moral values. He hopes to be
T T
able to find a job as a cook after his release from prison.
U U
V V
-5-
A A
B B
C 18. The defendant had cooperated with the Police fully and had C
entered a timely plea. Mr Leung for the defendant asks for leniency.
D D
E Sentence E
F F
19. It is trite law that the sentencing guidelines for burglary of a
G domestic premises is that of 3 years’ imprisonment for a first offender, G
subject to any aggravating or mitigating circumstances1.
H H
I One aggravating factor I
J J
20. The defendant committed the present offence whilst on Police
K bail. He committed the present offence two years into his abscondment. K
This is a serious aggravating factor for which I will enhance his sentence
L L
by 6 months’ imprisonment.
M M
21. Although the defendant is not of clear record, his previous
N N
convictions were quite some time ago. His last convictions involving
O dishonesty were 8 years ago and when he was at a younger age. His latest O
conviction was for criminal damage, an offence of a different nature to
P P
burglary and which was committed before the present offence. I will not
Q enhance his sentence on the basis of his previous convictions. Q
R R
S S
T T
1
R v Chan Yui Man [1989] HKCU 36, CACC 36/1988; AG v Lui Kam Chi [1993] 1 HKC 215 and
HKSAR v Ng Wai Hing [2003] 2 HKLRD 338.
U U
V V
-6-
A A
B B
No additional Mitigating factors
C C
22. There is no evidence that the defendant’s commission of the
D D
present offence was as a result of his mental condition.
E E
23. Furthermore, there is no evidence that suffering from bipolar
F F
disorder has affected the defendant so much and in such a way that would
G warrant a discount in sentence. As such, there is to be no discount based G
on his medical condition.
H H
I 24. As for his cooperation with the Police upon arrest, I find that I
any discount he may be entitled to on this basis should be subsumed in the
J J
one-third discount granted for his plea of guilty.
K K
Sentence
L L
M 25. As referred to above, I adopt a starting point of 3 years’ M
imprisonment, enhance it by 6 months and then discount it by one-third for
N N
the defendant’s timely plea, and sentence the defendant to 28 months’
O imprisonment. O
P P
26. I am told that the defendant had finished serving his sentence
Q for the Criminal Damage conviction on 3 April 2019. There is, therefore, Q
no need to deal with totality.
R R
S S
T T
U U
V V
-7-
A A
B B
27. If by any chance the previous DATC order had not expired,
C pursuant to section 6A(1)(b) of the Drug Addiction Treatment Centres C
Ordinance, Cap 244, the previously in force detention order shall cease to
D D
have effect upon the imposition of the present sentence.
E E
F F
G G
( Douglas T H Yau )
H District Judge H
I I
J J
K K
L L
M M
N N
O O
P P
Q Q
R R
S S
T T
U U
V V
A A
B B
DCCC 799/2018
C [2019] HKDC 513 C
D D
IN THE DISTRICT COURT OF THE
E HONG KONG SPECIAL ADMINISTRATIVE REGION E
CRIMINAL CASE NO 799 OF 2018
F F
G ------------------------------- G
HKSAR
H H
v
I YUEN YING YEUNG I
-------------------------------
J J
K Before: His Honour Judge D Yau K
Date: 10 April 2019
L L
Present: Miss Stella Lo, Public Prosecutor, for HKSAR
M Mr Michael Leung Lai Yin, instructed by Rowdget W Young M
& Co, assigned by the Director of Legal Aid, for the defendant
N N
Offence: Burglary (入屋犯法罪)
O O
P
--------------------------------------- P
REASONS FOR SENTENCE
Q Q
---------------------------------------
R R
1. The defendant pleaded guilty to one charge of burglary.
S S
T T
U U
V V
-2-
A A
B B
Summary of facts
C C
2. PW1 was a tenant of Room 8, one of 10 rooms in a sub-
D D
divided flat on 1st Floor of No 935 Canton Road.
E E
3. At about 1:15 pm on 7 May 2018, PW1 left Room 8 with all
F windows and the door secured. She returned at 7:30 pm and found the door F
prized open. The place was ransacked and her Home Visit Permit, China
G G
Identity Card, Hong Kong driving licence, China driving licence, two bank
H cards, one credit card, RMB100 cash coupon and one television went H
missing.
I I
J 4. The case was reported. Upon investigation, fingerprints were J
lifted from a shoe box, matching those of the defendant on Police file.
K K
L 5. The defendant was located and arrested. Under caution, he L
admitted to burgling the room and stealing the properties mentioned above.
M M
The missing television was later found in the defendant’s residence upon
N N
search.
O O
6. In the subsequent cautioned interview, the defendant claimed
P P
that it was his first time going to Room 8 and that he committed the
Q burglary alone. He had forced open the wooden door and damaged the Q
lock to gain entry. He kept the television and discarded all the
R R
identification documents.
S S
T T
U U
V V
-3-
A A
B B
Previous convictions
C C
7. The defendant has 15 convictions from 4 previous court
D D
appearances. His first conviction was for theft when he was almost
E 16 years old. His second conviction was for robbery and he was sentenced E
on the same day to detention at the Rehabilitation Centre.
F F
G 8. 3 years later in April 2010 when he was 18 and a half, he was G
convicted of possession of a dangerous drug and was sentenced to
H H
detention at the Drug Addiction Treatment Centre (“DATC”). On 8 April
I 2011, he was sentenced again to the DATC for claiming to be a member of I
a triad society and wounding under s 19 of the Offences Against the Person
J J
Ordinance, Cap 212. He was 19 years and 4 months old.
K K
9. Just about 2 weeks later, he was sentenced for 10 charges of
L L
theft to the DATC, the sentence to run concurrently with the earlier DATC
M sentences. M
N N
10. The defendant managed to stay on the right side of the law for
O the next 7 years, until his conviction on 6 August 2018 for criminal damage O
when he was, again, sentenced to the DATC. He was released from
P P
detention on 3 April 2019 and transferred to Lai Chi Kok Reception Centre
Q pending being dealt with in the present case. He had finished serving the Q
sentence in that case.
R R
S 11. In addition to the above convictions, the defendant was S
arrested in June 2016 in relation to a case of conspiracy to defraud. He was
T T
granted Police bail but absconded on 5 June 2016. This conspiracy to
U U
V V
-4-
A A
B B
defraud case is still pending. The defendant, therefore, committed the
C present offence whilst on Police bail, and 2 years into his abscondment. C
D D
Mitigation
E E
12. The defendant is 27. He has fathered a daughter with his
F F
former girlfriend, but they have not kept in touch.
G G
13. The defendant was diagnosed as suffering from bipolar
H H
disorder in 2015 and requires medication and regular follow up treatment.
I I
14. The defendant lives with his present girlfriend, together with
J J
a 3-year-old girl and her mother at a building at No 1184 Canton Road.
K The defendant had come to know the mother and daughter before and they K
decided to rent the room together.
L L
M 15. Unfortunately, the mother has personal issues and the M
defendant would end up looking after the daughter a lot of the time. The
N N
defendant sees her as a god-daughter and they have a good relationship.
O O
16. The defendant moves house for other people from time to time
P P
to earn a living. His financial situation has not been good. The defendant
Q kept the television that he stole so that the girl can watch. It was not for Q
his personal benefit.
R R
S 17. Since his arrest, the defendant has started attending Bible S
school and has been learning about proper moral values. He hopes to be
T T
able to find a job as a cook after his release from prison.
U U
V V
-5-
A A
B B
C 18. The defendant had cooperated with the Police fully and had C
entered a timely plea. Mr Leung for the defendant asks for leniency.
D D
E Sentence E
F F
19. It is trite law that the sentencing guidelines for burglary of a
G domestic premises is that of 3 years’ imprisonment for a first offender, G
subject to any aggravating or mitigating circumstances1.
H H
I One aggravating factor I
J J
20. The defendant committed the present offence whilst on Police
K bail. He committed the present offence two years into his abscondment. K
This is a serious aggravating factor for which I will enhance his sentence
L L
by 6 months’ imprisonment.
M M
21. Although the defendant is not of clear record, his previous
N N
convictions were quite some time ago. His last convictions involving
O dishonesty were 8 years ago and when he was at a younger age. His latest O
conviction was for criminal damage, an offence of a different nature to
P P
burglary and which was committed before the present offence. I will not
Q enhance his sentence on the basis of his previous convictions. Q
R R
S S
T T
1
R v Chan Yui Man [1989] HKCU 36, CACC 36/1988; AG v Lui Kam Chi [1993] 1 HKC 215 and
HKSAR v Ng Wai Hing [2003] 2 HKLRD 338.
U U
V V
-6-
A A
B B
No additional Mitigating factors
C C
22. There is no evidence that the defendant’s commission of the
D D
present offence was as a result of his mental condition.
E E
23. Furthermore, there is no evidence that suffering from bipolar
F F
disorder has affected the defendant so much and in such a way that would
G warrant a discount in sentence. As such, there is to be no discount based G
on his medical condition.
H H
I 24. As for his cooperation with the Police upon arrest, I find that I
any discount he may be entitled to on this basis should be subsumed in the
J J
one-third discount granted for his plea of guilty.
K K
Sentence
L L
M 25. As referred to above, I adopt a starting point of 3 years’ M
imprisonment, enhance it by 6 months and then discount it by one-third for
N N
the defendant’s timely plea, and sentence the defendant to 28 months’
O imprisonment. O
P P
26. I am told that the defendant had finished serving his sentence
Q for the Criminal Damage conviction on 3 April 2019. There is, therefore, Q
no need to deal with totality.
R R
S S
T T
U U
V V
-7-
A A
B B
27. If by any chance the previous DATC order had not expired,
C pursuant to section 6A(1)(b) of the Drug Addiction Treatment Centres C
Ordinance, Cap 244, the previously in force detention order shall cease to
D D
have effect upon the imposition of the present sentence.
E E
F F
G G
( Douglas T H Yau )
H District Judge H
I I
J J
K K
L L
M M
N N
O O
P P
Q Q
R R
S S
T T
U U
V V