HKSAR v. Cheung Wing Lap

DCCC 765/2015

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 765 OF 2015

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REASONS FOR SENTENCE

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Introduction

1.On 13 January 2016, the defendant pleaded guilty to two charges of burglary, preferred against him under section 11(1)(b)(4) of the Theft Ordinance, Cap 210.

Facts

2.Madam Tsang lived with her son, daughter-in-law, and grandchild at Room 1648, Ngan Fung House, Fung Tak Estate, Wong Tai Sin, Kowloon.  At around 6am on 24 March 2015, she left home for her morning exercises and returned at about 6:30am.  Not wanting to wake up her family, she did not shut and lock the iron gate and the wooden door of her unit.  After taking a shower, she discovered her mobile phone valued at about $1,000 had gone missing.  She woke up her son, who found his $1,000 and Rolex watch worth about $45,000 had also gone missing. A report was made to the police.   (Charge 1)

3.On the afternoon of 21 May 2015, Madam Chung, who lived with her family at Room 2915, Fung Chuen Court, 80 Po Kong Village Road, Wong Tai Sin, took her eight-year-old daughter to see a doctor, leaving her 76-year-old mother and a half-year old daughter at home.  She shut the iron gate of her unit, but without locking it, while leaving the wooden door ajar.  A few minutes later, Madam Chung and her daughter returned home to use the toilet only to find a man standing in the living room.  Madam Chung demanded: “What are you doing?”  The man said: “Nothing,” and left the unit.  It transpired that Madam Chung’s mother was having a shower at that time.  Subsequently Madam Chung discovered that her Lenovo Tablet computer worth some $1,650 had gone missing.  Police investigation revealed that a CCTV installed at a staircase of the building had captured an image of the defendant; in consequence, the defendant was placed on the immigration watch list. (Charge 2)

4.On 26 June 2015, the defendant was arrested as he entered Hong Kong from the mainland via the immigration checkpoint at Lo Wu.  Under caution, he admitted to the two offences.      

Mitigation

5.The defendant is 47 years old and lives with his brother in Wong Tai Sin.  He has criminal conviction records, which span over 20 years, in respect of 13 charges of burglary, 5 charges of attempted burglary and two charges of loitering. 

6.Ms Khubchandani PP for the prosecution helpfully refers the court to the cases of HKSAR v Song Jianhua[1], HKSAR v Tong Fuk Sing[2] and HKSAR v Lau Hin Man[3], in which the Court of Appeal identified two aggravating factors in case of burglary committed at residential premises.  First, when the offence is committed in the early hours of the day, there would be higher chances of confrontation with the occupants of the premises.  A higher starting point can be adopted for the increased risk of confrontation.  Secondly, if the offender is a recidivist, the starting point can be enhanced to take that into account.

7.In his plea in mitigation, Mr Adonis Cheung appearing for the defendant argues that there is a marked degree of opportunism inherent in the two offences in that the defendant has just seized the moment of the occupants’ inattention or carelessness, and he entered the burgled premises without any act of breaking-in.  No tools, no weapons, and no violence have been used in the two burglaries, says Mr Cheung.  In addition, Mr Cheung stresses that the defendant has co-operated fully with the police to the extent of providing them with the only incriminating evidence in respect of the first charge.

8.Ms Khubchandani PP is, in the court’s view, correct in drawing the court’s attention to the relevant sentencing principles with regard to recognized categories of aggravation.  The two aggravating features referred to by Ms Khubchandani are plainly present in this case; Mr Cheung does not, fairly, seek to dispute them.  There are, on the other hand, obvious merits in Mr Cheung’s plea in mitigation, in particular, that an offender should be encouraged to render post-arrest assistance to the investigating authorities. Having considered the respective submissions of the parties, it is the court’s view that the mitigating and the aggravating factors in this case even out themselves.

9.In the result, the usual starting point of three years’ imprisonment for burglary committed in domestic premises is adopted for each of the two charges.  The defendant is accorded, for his guilty pleas, the customary one-third reduction and is therefore sentenced to two years’ imprisonment for each charge.

10.Applying the totality principle, it is ordered that two months of the sentence in Charge 2 be served consecutively to the sentence for Charge 1, thus resulting in a final sentence of two years and two months’ imprisonment.

Conclusion

11.For the offences in the two charges of which he stands convicted, the defendant is sentenced to a term of imprisonment of two years and two months.