HKSAR v. Fan Muk Kan

DCCC 551/2015

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 551 OF 2015

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REASONS FOR SENTENCE

1.Fan Muk Kan you have pleaded guilty to two charges of burglary, contrary to section 11 of the Theft Ordinance[1].

2.Full particulars of the offences are set out in the facts admitted by you on the 11 November 2015.  In summary in March this year you resided at Room C, Flat B on the 21/F of Lakeshore Building in Tuen Mun.  Your neighbour Madam Tang resided at Room A. 

3.On the 9 March, after securing her room, Madam Tang went away for two weeks.  While Madam Tang was away you burgled her home by using a spare key you found in the electricity meter room.  You stole 29 red-packets containing about $500 from a bag hanging on the wall and a gold pendant, valued at $4,000, from an accessory box placed on Madam Tang’s desk.  Subsequently the police found your palm print on a drawer of the desk.

4.Madam Tang returned home late on the evening of 23 March to find the red-packets and pendant missing.  The next day at around 5:30 p.m. you used the key again to enter Room A.  This time you found Madam Tang at home.  The police were called and later the same day you were arrested. 

5.You fully cooperated with the police.  You admitted you burgled the home using the key on the 21 March when you stole the red-packet money and the gold pendant. You then took the police to the store where the gold pendant was melted and sold.  You also admitted that on the 24 March you entered Room A again, intending to steal.   

Mitigation

6.In passing sentence I have carefully considered everything said on your behalf by Mr Davies together with the content of the background report.  I take into account you have a clear record.  I am told you acted out of greed.  Having found the key you took the opportunity to burgle your neighbour’s room while she was away.

7.The correct starting point for a single burglary of residential premises committed by a first offender of full age where there are no aggravating or mitigating features is 3 years imprisonment.  Mr Davies submits a lower starting point is appropriate because you did not go looking for premises to burgle.

8.Lower starting points have been taken where the burglary was opportunistic, with the burglar being described as akin to a “sneak thief”[2].  In HKSAR v Law Tin Yam[3] the defendant stole a packet of cigarettes from an adjoining cubicle when the occupant was away on holiday and had left the cubicle unlocked.  In holding that the appropriate starting point was one of 15 months imprisonment the Court of Appeal said:

“So what this amounted to was an invasion of a home, albeit a cubicle, with a view to theft, which is of course sternly to be discouraged, which is why a term of imprisonment inevitably follows; but on the other hand this was a casual entry into a neighbour’s cubicle when other people were about and the theft of but one packet of cigarettes by a defendant in his mid-40s on social security. Sentencing guidelines must never obscure the individual facts and justice of a case …..”

9.Similarly in HKSAR v Kwok Wing Kam[4] CACC 394/2010 the same starting point of 15 months imprisonment was said to be appropriate where the defendant stole a packet of lemon tea from the refrigerator of  a residential flat on a different floor of the building where she lived.

10.These cases can be distinguished.  In Law Tin Yam the cubicle was unlocked. In Kwok Wing Kam a plastic card was used to open the door which was not securely closed.  You used a key to enter Madam Tang’s room, which she had secured.  Further, you stole $500 red-packet money and a pendant, valued at $4,000.  Whilst not of high value this is not the same as stealing a packet of cigarettes or a packet of lemon tea.  Not satisfied with your takings you used the key a second time to enter the room intending to steal.  

11.I do, however, accept that this is not a case where you went out specifically looking for premises to burgle.  The background report confirms you acted out of greed.  There appears no financial reason to commit burglary.  You were in full time employment earning a good salary.  I accept you deeply regret what you have done and promise not to violate the law again.  Looking at your background and the circumstances of the burglaries, I am satisfied that the risk of re-offending is very low.   

12.Bearing in mind the need for individual justice I am satisfied that in all the circumstances a lower starting point is appropriate.  I am satisfied a starting point of 2 yearsimprisonment is appropriate for each offence.   

13.Giving you full credit for your pleas of guilty the sentences are reduced to 1 year and 4 months imprisonment on each charge. 

14.You have agreed to compensate Madam Tang for her loss and consent to $4,500 being taken from your bail money, which sum fully compensates Madam Tang for her loss.  Accordingly I reduce the sentence on charge 1 by 2 months to 1 year and 2 months imprisonment. 

Totality

15.Mr Davies submits that as the same premises were burgled concurrent sentences are appropriate.  I disagree.  The burglaries were committed on two different days for which consecutive sentences are appropriate. 

16.In considering totality I take into account that the same premises were burgled; no one was at home for the first burglary; nothing was stolen in the second burglary; that you fully cooperated with the police; your clear record; and that Madam Tang has been fully compensated for her loss. 

17.Taking into account all the circumstances, I am satisfied that a total sentence of 1 year and 4 months imprisonment is appropriate, which I am satisfied properly reflects your criminality on the two charges.

Sentence

18.You are convicted and sentenced as follows:

Charge 1 – 1 year and 2 months imprisonment; and ordered to pay $4,500 compensation to Madam Tang, payment of which you have consented to being deducted from your bail money; and

Charge 2 – 1 year and 4 months imprisonment with 2 months consecutive and 14 months concurrent to charge 1.

Total sentence is 1 year and 4 months imprisonment.

[1] Cap 210.

[2] See HKSAR v Cheung To Ming [2006] 2 HKLRD 259 and HKSAR v Sim Ka Wing CACC 450/2000 cited by Mr Davies.

[3] CACC 258/2010.

[4] CACC 394/2010.