HKSAR v. Chan Siu Hung and Another

DCCC 763/2015

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 763 OF 2015

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Reasons for Sentence

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1.In respect of this joint charge, the 1st defendant entered a plea of not guilty and was convicted after trial; the 2nd defendant pleaded guilty at the outset of trial.

2.Both defendants have admitted their antecedents.

3.I will deal with the 1st defendant.  He is now aged 33, unemployed prior to his arrest and received up to secondary education in Hong Kong. 

4.He has a number of convictions recorded against him, in all, a total of nine previous records of being in court in offences such as possession of a dangerous drug and handling stolen goods.  He was initially sentenced to imprisonment in August 2010 when he received a sentence of 3 years and 9 months’ imprisonment and most recently on 3 June 2015 he received a sentence of 1 month’s imprisonment for going equipped for stealing and was released on 30 June 2015.  Although he has a number of previous convictions, he has no similar convictions.

5.As far as the 2nd defendant is concerned, he is aged 40, received secondary education in Hong Kong, was unemployed at the time of his arrest. 

6.He also has a number of previous appearances in court, some 16.  He has one previous conviction for burglary, but that was in 1992, when he was sentenced to a detention centre.  Also offences of dishonesty such as theft and attempted theft and more recently in 2015 he received a sentence of 6 months’ imprisonment for going equipped for theft and discharged from custody in respect of that matter on 5 December 2015.

7.Although the defendant does have one previous conviction of burglary, it was clearly committed a long time ago and I do not find that it would aggravate the sentence in respect of this matter.

8.As far as the 1st defendant is concerned, I am told he has a cohabitant who is pregnant by him.

9.As far as the starting point for sentence, I have heard mitigation in respect of that matter. 

10.On the face of it, it is a residential building.

11.However, I have been referred to the case of HKSAR v Suen Chi Wai, CACC 90/2015, and that enjoins the court to look more closely into the actual circumstances of the burglary and where it took place within the building, and the court should look at what has been the intruder has actually targeted in respect of the building, so that if it is shown to the satisfaction of the sentencing judge the intruder was stealing from the common areas only and not from inside individual residential homes, a starting point lower than the customary one may be - may be - justified.

12.And it is said, to a certain extent, this was an opportunistic burglary.  There was no forcible entry into the building.  Nobody was aware of the defendants’ entry into the building at the time, so nobody was put in fear, and it is said that, in that situation, starting point similar to that adopted for a non-residential burglary may be appropriate.

13.I have considered those factors, also the nature of the burglary as opportunistic (involving simply the removal of a combination lock), the fact that it was done late at night when there was nobody likely to be about, and the low value of the items taken. 

14.What I should do is adopt an overall starting point of one of 27 months’ imprisonment.

15.As far as the 1st defendant is concerned, it is said in respect of him there are certain other mitigating factors.  His role was one of assisting, carrying the bag away and also appears to have no actual reward other than having a meal.  There are no other aggravating factors in respect of his involvement in the burglary.

16.As far as the 1st defendant is concerned, I will therefore adopt a starting point of 24 months’ imprisonment, which will be the finishing point for him and so the sentence for the 1st defendant will be one of 24 months’ imprisonment.

17.As far as the 2nd defendant is concerned, I am enjoined by his counsel to take account of his plea of guilty, which will reduce the sentence by one-third.

18.Taking the overall starting point for him at 27 months, a reduction of one-third leads to a sentence of 18 months’ imprisonment.

19.And so those will be the sentences that I will impose.