HKSAR v. Chow Kwok Hung

DCCC 901/2015

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 901 OF 2015

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REASONS FOR SENTENCE

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1.The defendant, (male) (aged 46 years), appeared before me this morning and pleaded guilty to a single charge of burglary, contrary to section 11(1)(b) and (4) of the Theft Ordinance, Cap 210.

2.According to the Summary of Facts which has been agreed by the defendant, the burglary took place on 8/F, No 28, Pei Ho Street, Sham Shui Po, Hong Kong.  At the time of the offence, which was at around 8:25 am on 17 July 2015, PW1, who is an occupier of a subdivided room, Room D of the premises, was staying in the room alone when she placed her handbag on the floor outside the room door.  She left the handbag unattended and went inside the room.  The facts also revealed that all the times, PW1 left the back door and the back gate which were adjacent to her bedroom and connected to the rear case ajar for the purpose of better ventilation. 

3.What happened was that the defendant used a metal hook and retrieved the handbag from the opened backdoor.  At the time of retrieving the handbag, PW1 heard some noises from the rear case.  She saw the metal hook being retrieved from the open backdoor.  PW1 then gave chase immediately along the rear staircase to no avail.  She picked up the hook at the staircase between 6/F and 7/F and reported to the police. 

4.The handbag had a number of valuable items, including cash of around HK$400 and RMB100; PW1’s People’s Republic of China Citizen ID card; her exit-entry permit for travelling to and from Hong Kong and Macau; her marriage certificate and divorce certificate; her daughter’s birth certificate, re-entry permit and some documents; and a coin bag containing a bundle of five keys, some coins in the sum of around $200; one supermarket cash coupon worth of $50; and three Octopus cards.

5.The police reviewed a CCTV camera’s footage nearby the building, which subsequently captured the defendant entering the building through the rear entrance about 10 minutes before the incident and left by the same route.  The defendant’s appearance and his tattoos were clearly captured in the CCTV image.  Eventually, he was arrested on 6 September 2015.  When he was arrested, the bundle of keys belonging to PW1 was found on his person.  Under caution, the defendant admitted committing the offence of the theft. 

Criminal record and background of the defendant

6.The defendant, in the past, have altogether 32 criminal records, out of which two were similar burglary records and 24 of which were involving dishonesty.  The first burglary conviction took place in 1994 and the defendant was sentenced to 12 months’ imprisonment.  The second conviction was an attempted burglary in 2011, for which he was also sentenced to a similar 12 months’ imprisonment.  His last conviction was in 2014 for the offence of misleading a police officer by giving false information and he was sentenced to 4 weeks’ imprisonment. 

7.The defendant was born in Hong Kong.  He was a divorcee.  According to the mitigation, the defendant lived with his aged old father, who is now aged 80 and was suffering from dementia.  Defendant used to work as a recycle worker, earning $5,000 a month, and he did not apply for any comprehensive assistance from the government.  At about two months before the offence, the defendant was unemployed. 

8.In mitigation, it was submitted that this was an opportunistic crime.  On the day in question, the defendant intended to go up to the building to pick up some abandoned property for sale.  He entered the building through the rear door, which was left open at that time.  When he went up to 8/F, he found that the rear door of the premises was left open and he noticed a handbag was placed on the floor.  He used a cloth hanger and adapted and converted it into a metal hook, and by using the hook, he extended his arms into the corridor and successfully retrieved the handbag. 

9.A letter written by the defendant was also submitted for my consideration.  The defendant had expressed remorse in the letter, saying that he was very regretful, and then he was very worried about his father and he wished that the court can be as lenient as possible, so that he can serve his time and then be released to take care of his father.

Sentencing considerations

10.The maximum sentence for burglary and conviction upon indictment is imprisonment for 14 years.  The present case is a case involving domestic premises burglary.  According to the Court of Appeal decision in R v Chan Yiu Man [1989] HKCU 36, the proper starting point for domestic burglary is one of 3 years’ imprisonment, in the absence of aggravating or mitigating factors.  But this starting point is only applicable to person of a clear criminal record. 

11.It was also submitted by the defence that the present case is akin to an opportunistic crime and therefore merits a reduction of the sentence from the starting point.  To support this contention, the defence has submitted to the court for consideration another case of HKSAR v Suen Chi Wai [2015] 5 HKLRD 33, in which the Court of Appeal had said that if it was shown that the intruder was stealing from only the common areas and not inside the individual rooms, a starting point lower than that of the customary one might-not must-be justified. 

12.The Court of Appeal also went on to explain that the fear that a victim might feel was what rendered a domestic burglary particularly serious.  By contrast, confronting an intruder in the common areas of any building was unlikely to cause as much alarm as confronting one in the confines of one’s home. 

13.In this case, although the defendant was targeting at a property in an individual home, the fact remains that he did not physically enter into the room itself.  He was just making use of a metal hook to retrieve the handbag from the rear door.  Therefore, the potential danger or the potential opportunity of confronting an intruder must be less. 

14.I also accept that the reason why this present offence came about was very much due to the fact that both the metal door of the main entrance at the ground floor, as well as the rear door of 8/F were both carelessly left open.  The defendant did not, and there is no evidence to suggest in contrary, intend to steal the valuable property of the room when he first entered the building.  I therefore concluded that I can reduce the starting point by 6 months, from 3 years to 2 years and 6 months, and that is 30 months. 

15.However, the defendant had a long history of criminal records.  There were two previous similar burglary records and a large numbers of dishonesty records.  I note, however, that both burglary records had taken place some times ago.  For this reason, I still has to increase the sentence, but only by 3 months, so as to act as a deterrent effect and to reflect the gravity of the matter.

16.The total starting point, therefore, is 33 months. 

17.Defendant had pleaded guilty, which is the only mitigating factor, for which he will be entitled to an one-third discount.  In the end, the defendant has to serve a total of 22 months’ imprisonment.