HKSAR v. Chan Wan Kin

DCCC 941/2015

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 941 OF 2015

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Reasons for Sentence

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1.The defendant has pleaded guilty to two counts of burglary.

2.Both burglaries took place on 23 July last year.  The two burgled premises were in the same building on the 5th and 6th floors.  That building, in Flower Market Road in Mong Kok, was under renovation and surrounded by scaffolding.

3.The defendant burgled one premise after the other.  He broke into the premises by prising open windows with his own screwdriver.  The police know he burgled one premise after the other because they had him under surveillance.  The defendant was followed to this building, and the police waited downstairs.  Not long after the defendant disappeared from sight, the police saw torchlight on the outside of the building at about the 6th floor.  They also saw the silhouette of the defendant climbing on the scaffold.  They waited for the defendant to climb down and come out of the back alley of that building.  They followed the defendant for a short distance.  The defendant obviously realised that he was being followed, and started to run. However, he was quickly subdued and arrested.  All the property that he had stolen from the two premises was recovered.

4.In an interview later, the defendant made a full confession to the police.

5.The defendant’s best mitigation is his plea of guilty.

6.The defendant has many previous convictions, and they are all burglary related.  In 1996, when he was only 19, he was sentenced to a training centre order for nine burglaries.  In 1998, when he was 21 years old, he was sentenced to 3 years and 6 months’ imprisonment for 10 burglaries.  Then he committed a further burglary, and was sentenced in 2004. In 2010, for two burglaries, the starting point of his sentence was enhanced by 6 months for his previous poor record.  In 2013, the defendant pleaded guilty to three burglaries and one attempted burglary and was sentenced by this court.  On that occasion I did not enhance the starting point, but from the transcript, I warned the defendant that if he committed a similar offence, any court would consider his recidivism an aggravating factor and increase any starting point.

7.I see no reason today to ignore my own warning to this defendant.  The defendant has committed these offences only four months after his release from prison.  On the last occasion, the defendant wrote a letter promising to reform himself and be a responsible father and husband. Sadly, he has not kept that promise, and in reality his family are the ones that suffer.

8.By way of background, the defendant is now 38 years old.  He did not receive much education and left school at Form 2.  He has worked as a waiter or a construction site worker.  When he committed these offences, he was unemployed.

9.His family, his wife and 12-year-old son, live in China.  He has siblings, but he is not close to his other immediate family.

10.Normally a starting point for a burglary of a domestic premises would be 3 years’ imprisonment if there are no aggravating or mitigating factors that exist.  In this case, the defendant’s previous criminal record is an aggravating factor.  The Court of Appeal, in HKSAR v Chan Pui Chi [1999] 2 HKLRD 830, made it clear that a recidivist, a repeat offender, can expect a sentence to be increased.  Clearly, previous sentences have been of no deterrent effect, and prevention of further repetition is demonstrably in the public’s interest.

11.Mr Hemmings has said all he can in mitigation on behalf of the defendant.

12.Defendant, please stand up.  I take into account the facts of the case, your plea today, and mitigation put forward, as well as the aggravating factor I have identified.

13.The usual starting point of 3 years I will increase by 6 months for both charges.  Therefore, the starting point is one of 3 years and 6 months.

14.You have pleaded guilty.  You are entitled to a discount of one-third.

15.After that discount is applied, for Charges 1 and 2, you are sentenced to 2 years and 4 months’ imprisonment.

16.I have considered that there are two offences, one committed after the other, and I have also taken into account the totality principle.

17.After considering those factors, I will order that 6 months of Charge 2 be served consecutively to Charge 1, the balance concurrently.

18.Therefore, the total sentence today is one of 2 years and 10 months’ imprisonment.