HKSAR v. Chung Cheuk Pang

DCCC 998/2015

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 998 OF 2015

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Reasons for Sentence

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1.The defendant was convicted after trial of one charge of attempted burglary and one charge of burglary.

Outline of facts

Charge 1

2.At around 00:30am on 8^th July 2015, alarmed by the sound of something falling off the shoe rack outside her home, PW1 went to look through the peephole and saw someone using a long plastic object to poke at the door lock on her gate. PW1 opened the wooden door to confront the person, who immediately dropped the object and fled.

3.According to the defendant’s admissions, he was the person whom PW1 confronted. The defendant used a long pole that he found nearby to try to hook out the shoes behind the closed metal gate of Room 2204. He dropped the pole upon PW1 opening the door and fled.

Charge 2

4.The defendant was intercepted by Police officers during a licencing check at a cyber café. When questioned by the Police, the defendant admitted to the commission of the charge 1 offence, as well as having stolen a pair of shoes from another unit in Kwai On House earlier that day, using an umbrella to hook out the shoes from behind the metal gate.

Previous convictions

5.The defendant has one previous conviction for indecent assault dated June 2012 when he was sentenced to probation. I do not consider this conviction an aggravating factor.

Sentence

6.The sentencing tariff for burglary of domestic premises is that of 3 years’ imprisonment. It is not disputed that the premises in charge 1 and 2 are domestic premises.

7.The attempted burglary in charge 1 was committed at around 00:30am, a time when most people would be home, thus increasing the chance of a confrontation, which in fact did happen when Ms. Wong opened the door and questioned who the defendant was.

8.The burglary in charge 2 was committed in the afternoon, when seemingly no one was at home. There was no confrontation. The value of the shoes stolen was only $450.

9.Sentencing must be sensitive to the facts of each case. I find that if I followed the sentencing guidelines rigidly and adopt a 3 year starting point for what the defendant had done would be too severe a punishment in the circumstances.

10.In the case of HKSAR v Khan Asif, CACC 83/2009, the applicant was lifted up by his companions to the level of an open window of a building. The applicant held on to the window sill, “popped his head in through the window, remained in that position for five to six seconds, withdrew his head to look back down to his companion; then did the same thing again …”.

11.Nothing further was done and the applicant was lowered and they walked out of the lane where the building was. There they were intercepted by Police officers and later arrested.

12.The Court of Appeal considered that sentencing should proceed on the basis that there was minimal entry into the premises for the purpose of stealing therein, but then they decided to abandon the ‘escapade’. The Court considered the usual 2 and a half year starting point for burglary of a non-domestic premises unwarranted given the particular facts of the case. The Court emphasized that they departed from the standard tariff because of the “somewhat unusual facts of the case”. The Court considered that an appropriate sentence after trial is one of 18 months’ imprisonment.

13.In our present case, the defendant did more than just popping in to see what was there to steal, he found the long pole and the umbrella nearby and then used them to enter the premises to try to hook out the shoes. His case is arguably slightly more serious than that of Khan Asif.

14.Having said that, I find that the burglaries are still relatively minor in nature.

15.I find that an appropriate starting point in relation to charge 1 is that of 15 months’ imprisonment. I find that there are no mitigating or aggravating factors.

16.In relation to charge 2, for the lack of confrontation, I adopt a slightly lower starting point of 12 months’ imprisonment. I find that there are no mitigating or aggravating factors.

Totality

17.Having considered the principle of totality, I order that 6 months of the sentence in charge 2 to be served consecutively to the sentence in charge 1, the balance concurrently. The final sentence for the two charges is therefore 21 months’ imprisonment.