HKSAR v. Cheong Sun Ho

DCCC 1092/2015

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 1092 OF 2015

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Reasons for Sentence

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1.The defendant has pleaded guilty to one offence of attempted burglary.

2.He has agreed the facts of the case and they show that the attempt took place in the early hours of 2 November 2015. It took place at a premises in Tung Choi Street in Mongkok.  The victim, described as PW1, and his cohabitant lived in the premises.  In the early hours of the morning, about 3.35 in the morning PW1 was awoken by a noise and conducted a check and when he did that he found that the defendant was climbing on the outer wall outside the window of his premises and the defendant tried to put his hand into the premises by pushing open a mosquito net which was fixed to the window frame.  PW1 shouted at the defendant "What are you doing here" and the defendant said "I'm chased by the police, don't call them" and then the defendant left the scene by climbing on a water pipe at the outer wall.  He lost his balance and then fell onto the podium.  As a result of that fall the defendant has been injured and at that time he asked for the police to be called.

3.The police arrested the defendant and under caution he remained silent.  He was then sent on to hospital.  When he was searched, various items which could have been useful in a burglary were found and the defendant has admitted as part of the facts today that he attempted to enter the premises as a trespasser with intent to steal therein, so conviction is entered against him.  So the defendant has pleaded guilty to an attempt to commit a domestic premises burglary.

4.I turn to the defendant's background and I have an antecedent statement.  He is aged 32, he is described as being single and unemployed at the time of his arrest although he has had employment in the past.  He completed Secondary 3 education in Hong Kong and has worked as a construction worker in the past.  He has a number of previous convictions.  He was last discharged from the Tong Fuk Correction Centre in November of 2014. 

5.As far as his actual criminal record is concerned, he has a number of recorded convictions on the formal record which takes us up to 2013, there are 10 recorded on that record.  The defendant started committing offences in 2002 with possession of a dangerous drug and his first burglary was committed in 2004 when he was sentenced to 18 months' imprisonment.  In 2007, he was sent to a Drug Addiction Treatment Centre and since then he has had four further convictions for burglary in 2009, 2010, 2011 and 2013 receiving sentences of 20 months' imprisonment in 2009, 2 years in 2010, in 2011 a further 2 years, then in 2013 a further 2 years' imprisonment for two offences of burglary served concurrently.  There have been some further convictions recorded in 2016 relating to offences involving dangerous drugs and theft which led to short periods of imprisonment which are recorded in terms of weeks.

6.So the defendant has a number of previous convictions for burglary for which he has served a number of sentences of imprisonment.  What I can conclude from that is those previous sentences in prison have failed to deter him from committing the incident offence of 2015. 

7.There was one other feature of the defendant's mitigation and that is his medical report.  It can be seen from the facts that the defendant has agreed that he was injured during the course of this attempted burglary and I have obtained a medical report on him which relates to examinations conducted in 2016.  On admission to the prison in January 2016, he was found to have a right ankle fracture and a dislocation as a result of committing the burglary and he was operated upon in Kwong Wah Hospital. 

8.The formal report I have dated 20 February 2016 describes his sustaining a right ankle fracture and dislocation, his admission to Kwong Wah Hospital and then admission after that to Queen Elizabeth Hospital.  He has been admitted to the hospital of Lai Chi Kok Reception Centre as well. He has had medical appointments in Kwong Wah Hospital including X-ray examination and further admissions.  What the report, it is not particularly detailed but what it does tell me is the defendant had a fracture of his right ankle as a result of this and it must be a quite serious fracture because of the amount of appointments the defendant has had.  There is no prognosis for that but I can be satisfied that the defendant will receive more than adequate medical care over the next period that he spends in custody.

9.The other feature of the defendant's medical background is that he is a drug addict and that no doubt explains a lot of his involvement in these kind of offences in order to gain money.  But the defendant, certainly over the last few years, has conducted a number of burglaries and that appears to be one of his methods of obtaining illegal goods to fund his addiction.

10.As far as the sentence for this offence is concerned, this is an attempt to commit a domestic premises burglary.  The attempt did not get too far because the defendant was interrupted but it is still a clear attempt to do so.  The guideline sentence for a person of clear record after trial who commits a burglary on a domestic premises is one of 3 years' imprisonment, that is the starting point for sentence for a person of clear record. 

11.The fact that this is an attempt does not in fact mitigate the starting point of sentence because the starting point for sentence for an attempt should be the same as for the completed offence.  The defence say in mitigation, firstly, that the offence was never completed and secondly, that the defendant himself has suffered injury as a result of the crime.  Of course one can take those into account.  Nevertheless, the other feature that I have in this case is the defendant has committed a number of burglaries and has not been deterred and that is very much an aggravating feature of this offence.

12.What I shall do is simply sentence as follows: I will take the normal starting point for sentence in respect of domestic premises burglary, being at 3 years' imprisonment.  The aggravating feature is the defendant's list of previous convictions.  I do not consider the fact he injured himself during the course of that burglary to be a particularly strong mitigating feature and so it will not mitigate that starting point.  As far as the aggravating feature is concerned, that will add a further 6 months to the starting point for the sentence of imprisonment and that period of 3 years 6 months is from where I will take the one-third deduction which will be a total of 14 months in this case which will lead to a final sentence in this case of 28 months' imprisonment and that is the sentence I will impose.