HKSAR v. Wong Kwok Pan

DCCC 23/2016

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 23 OF 2016

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Reasons for Sentence

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1.The defendant has pleaded guilty to one offence of burglary, contrary to sections 11(1)(a) and (4) of the Theft Ordinance, the allegation being the defendant entered part of a building at the 3rd floor of No 85 Kweilin Street, Sham Shui Po, with intent to steal.

2.That is supported by the facts, which have been admitted.  They show that the location of the offence is the 3rd floor of 85 Kweilin Street in Sham Shui Po.  There is an apartment there divided into three units designated as Flats A, B and C respectively.  Those three units share the same external gate.

3.On 24 November 2015, at around 6.30 in the evening, PW1, who occupied B flat, left her keys unattended at the gate.  The next day, on the 25th, at around 2.30 pm, the occupant of Flat C returned home and found the defendant trying to gain access into Flat A, using the bundle of keys.  He knew the defendant did not live there, and went off to contact the agent to replace the locks on the gate.

4.That person, who was PW2, returned to the apartment.  The defendant was still there, trying to gain access to another unit, Flat B.  The locksmith came at about 5 o’clock in the evening, and the defendant was still there, trying to gain access to Flat B.  The police were then informed.

5.PW1 later identified the keys that were the ones the defendant was trying to use to gain access.  They were her keys. 

6.The defendant was arrested at the scene.  He denied the offence originally and said his friend had given him the keys and he was going to sleep in the apartment.  He was unable to provide any details to verify that.  Later on, he said he was looking for a friend.

7.But he has agreed today that he entered as a trespasser part of the apartment with an intent to steal therein.  So the defendant had gone through the communal gate to the three apartments using the key, and then failed to gain entry to any of the flats.  I am told by defence counsel that is because they did not actually fit any of the locks.

8.The defendant’s antecedents have been agreed. He is aged 36 years old.  He was born in Kiping and educated up to Primary 6 level.  He was unemployed at the time of his arrest.  He is, on his own admission, a drug addict.  He consumes “Ice”.  He is single, but has been married in the past and is now divorced or separated, and provides some support to his father and mother.

9.He has a criminal record of unrelated offences dating back to 2009.  He has served sentences of imprisonment for offences such as managing and assisting in the management of a vice establishment, and more recently, in 2012 to 2014, has been sent to a drug addiction treatment centre for offences involving possession of a pipe fit and intended for smoking drugs, and also possession of obscene articles, and he was last discharged from a drug addiction treatment centre.

10.The offences are unrelated, but perhaps more attributable to his drug addiction, and it may well be that this offence is attributable to that as well.

11.As far as mitigation is concerned, it is said in mitigation these are clearly a domestic premises, and the defendant is well aware of the guideline for that form of burglary.  It is a first offence of burglary, and he prays in aid his plea of guilty.

12.It is common ground that this is a domestic premises, and the guideline sentence after trial for a person of previous clear record for burglary of domestic premises is a starting point of 3 years’ imprisonment.

13.I do note in the case of HKSAR v Sim Ka Wing CACC 450/2000, the Court of Appeal said, in relation to a non‑domestic burglary:

“The conventional starting point can be lowered in the case of the opportunistic burglar, akin perhaps to the sneak thief who walks into an office.”

14.This rubric would not be confined purely to non‑domestic burglaries, but presumably would apply to a domestic burglary as well.

15.In this case, the defendant entered through a common access door by way of a key left in the door, and clearly, seeing the key in the door and finding it is an opportunistic act, and he takes the opportunity then to try and enter into the individual apartments, where he appears to be confounded by the fact the key that he had did not fit those apartment doors.  Nevertheless, on the facts, it appeared that he spent a whole afternoon in and about those doors trying to get entry.

16.It is also clear that there is little or no planning involved in this offence.

17.I consider that, given the unusual factual background for this case, the guideline can be applied with some flexibility. What I shall do is instead of 36 months, I will adopt a starting point of 30 months’ imprisonment, from which I will deduct the one-third deduction for the defendant’s plea of guilty.

18.That will lead to a final sentence of 20 months’ imprisonment for this offence.  So the sentence will be one of 20 months’ imprisonment.