HKSAR v. Chai Chi Wah, Ricky

DCCC 282/2015

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 282 OF 2015

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Reasons for Sentence

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1.In this case, the defendant, Chai Chi-wah Ricky, is charged with one count of “Burglary”, contrary to section 11(1)(b) of the Theft Ordinance, Chapter 210. He was convicted upon his plea and admission of facts.

Facts

2.At around 2225 hours on 7 December 2014, the defendant and another person not in custody entered a shopping centre in Yau Ma Tei, smashed the display window of a shop on the 1st floor and went away with four expensive handbags.  Leaving behind a trolley bag and a 2.5-foot-long hammer near the shop,  they made good their escape through the fire emergency exit.  In the process of breaking the window, the defendant injured himself, and the blood found on the glass fragments from the broken display window linked him to the scene.

3.The records from the Immigration Department showed that the defendant left Hong Kong at around 2340 hours on the same night.  He was arrested when he came back to Hong Kong on 29 February 2015.

4.The total value of the four handbags was about $605,552.  None of the property has been recovered.

5.Under caution, the defendant remained silent.

Sentencing Consideration

6.Both the prosecution and defence agree that this is a burglary involving business premises for which the proper starting point of sentence is 30 months[1]. However, the starting point should be adjusted upwards if there are aggravating circumstances, some of which have been identified by the Court of Appeal in the case of HKSAR v Cheng Wai Kai[2]. They are:

(1) if the offence is carefully planned and skilfully executed involving the use of heavy instrument or equipment;

(2) the offence is committed by two or more persons;

(3) the offence targets at substantial premises and involves substantial properties;

(4) the offender is a professional burglar and not just an opportunist;

(5) the offender has previous convictions, particularly previous conviction of similar nature;

(6) the offender commits multiple offences.

7.In my view, the following aggravating factors are present in this case:

(1) The offence was obviously planned and the defendant brought with him a 2.5-foot-long hammer and a trolley bag to commit the crime.

(2) There are at least two persons involved.

(3) The combined value of the four handbags is a rather substantial sum of $605,552, none of which has been recovered.

(4) Despite that it was committed in a rather clumsy manner (the defendant having injured himself in breaking the display window), this is definitely not an opportunity crime. The fact that four handbags of such substantial value were taken and that the defendant left Hong Kong in just an hour after the burglary left no doubt that advanced planning had been made for targeting the goods, the commission of the burglary and the subsequent dissipation of the property stolen.

(5) The defendant has been convicted of two counts of burglary and one count of attempted burglary in 2010 for which he was sentenced to a total of 21 months.

8.By reasons of the above, I therefore would adopt a higher sentence starting point of 36 months.  

Mitigation

9.The defendant is a 30-year-old man with five previous convictions involving five counts of dishonesty-related offences.  He could not claim credit for his youth or inexperience.  In mitigation, I have been informed by his lawyer that the defendant is a loving father with three young children, that he is remorseful, and as evidenced by a letter written by him; I also take into account what the defence counsel said of the present offence “a rather amateurish crime of a ‘smash and grab’ with no detailed planning”. 

10.Yet as explained above, I found that the commission of the offence, though not professionism in its highest form, is definitely not amateurish or opportunistic.  I found none of the matters referred to above constitute valid mitigating factor.  The only valid mitigation is his plea of guilty.  I would therefore accord him with the usual one-third discount and order a term of imprisonment of 24 months.