HKSAR v. Hung Shu Wing

DCCC 130/2016

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 130 OF 2016

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REASONS FOR SENTENCE

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1.The defendant pleaded guilty to one count of “Attempted burglary”, contrary to section 11(1)(a) and (4) of the Theft Ordinance, Cap 210 and section 159G of the Crimes Ordinance, Cap. 200.

Facts

2.Mr Lau Kwok Kwong’s sister resided at House No. 118, Lok Lo Ha, Fo Tan, Shatin (“the Premises”).  The Premises were vacated on 6 January 2016 for renovation.

3.On 8 January 2016, while Mr Lau was doing renovation work outside the Premises, the defendant approached him and asked if the Premises were for lease.  Mr Lau told the defendant that the Premises were not ready.

4.At around 4:40am on 10 January 2016, an occupant of a nearby property noticed the defendant loitering in the vicinity of the Premises.  A report was made to the police.

5.Upon arrival, the police found the defendant interfering with the lock of the door of the Premises.  At that time, the defendant was holding a screwdriver and a hammer and wearing a pair of gloves.  The defendant was arrested.  Under caution, the defendant said he was going in to have a look at the decoration work.  Mr Lau later confirmed the screwdriver and the hammer were properties placed in the garden of the Premises.

Mitigation

6.The defendant is aged 59, single and lived alone.  He is a university graduate.  He had worked as a teacher for 20 years.  Then, he worked as a property agent for about 10 years and, since 2013, he had worked as a part-time construction site worker.  The defendant has 9 criminal conviction records, all relate to offences involving dishonesty but none of them is for burglary.  He was last released from prison on 31 October 2015.  In his mitigation letter, the defendant explained that he committed the present offence as he was not able to find a job since his release from prison.      

7.In mitigation, Ms Chow referred to HKSAR v Suen Chi Wai, CACC 90/2015 and submitted that since the offence was not premeditated, that there was no forcible entry into the Premises and the Premises were not occupied at the material time, the court may consider adopting a lower starting point for the offence.

Sentence

8.There is a well settled sentencing guideline for burglary of domestic premises.  According to the guideline, the starting point for a single burglary of domestic premises committed by a first offender of full age where there are no aggravating or mitigating features is 3 years’ imprisonment.

9.The starting point can be adjusted upward if there are aggravating circumstances such as (1) the offence is carefully planned and skillfully executed involving the use of heavy instrument or equipment; (2) the offence is committed by two or more people; (3) the offence targets at substantial premises and involves substantial properties; (4) the offender is a professional burglar; (5) the offender has previous convictions, particularly previous conviction of similar nature; and (6) the offender commits multiple offences (see HKSAR v Cheng Wai Kai, CACC 338-339/2007).

10.As far as the defendant’s previous conviction records are concerned, whilst he has 9 previous convictions, none of them relate to burglary.  In the circumstances, I find there is no aggravating features in the commission of the offence in this case. 

11.Since the Premises were vacated for the purpose of renovation at the material time, there was no risk of the defendant confronting an occupant in the Premises and thereby putting that occupant in fear.  In the circumstances, I agree that the principle set out in Suen Chi Wai applies.  I consider the appropriate starting point is 2½ years.  Since the defendant pleaded guilty to the charge, he is entitled to the usual 1/3 discount on his guilty plea.  Therefore, the sentence is reduced to 20 months’ imprisonment.  Apart from his guilty plea, I do not find any other mitigating factor justifying a further reduction of sentence.  I hereby sentence the defendant to 20 months’ imprisonment.