HKSAR v. Kwok Chak Kau

DCCC 38/2016

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 38 OF 2016

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Reasons for Sentence

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1.The defendant has pleaded guilty to charge 1, burglary, and charge 2, an attempted burglary.

2.The facts for charge 1 are as follows:-

On 21 October 2015 at about 5 am, the defendant climbed up five storeys to burgle a domestic premise. He straightened a clothes hanger and inserted it through an open window and managed to hook a wallet and steal $200. The owner of the premises woke up because he heard some noise, went to his living room and saw the defendant on the outside of his window in his flower box. He chased the defendant away and called the Police. The defendant is very lucky not to have fallen from that height.

3.The 2nd charge, that offence took place on 10 November 2015.  At about 3 am, the defendant was in a village, Tai Shui Hang in Ma On Shan.  He was caught red-handed by a Police officer on anti-burglary patrol standing on a stool with both hands on a window of a ground floor premise. That window had been left partially open by the tenant.  The defendant's palm print was later lifted from the edge of that window.  Under caution, the defendant admitted to the Police officer that he was caught in act, meaning red-handed.  He asked the Police officer for a chance and told the Police officer that he had "picked up that stool nearby".  Essentially he admitted attempted burglary.

4.The defendant's best mitigation is his plea of guilty.  The defendant is 39 years old.  He does not have a clear record but he has two previous minor offences committed 20 years ago when he was a teenager. Clearly the defendant is not a professional criminal or burglar.  I have heard an explanation as to why he committed these offences.  He committed these offences because of financial pressure.  He was out of work at the time and that was not his own choice.  At the time he had parents in Hong Kong as well as a wife and daughter in China who were all financially reliant on him.  He also had a debt of about $100,000 and clearly creditors were knocking on the door.  I have heard all that can be said on behalf of the defendant in mitigation.

5.The defendant is not highly educated and has worked all his life but in mainly manual work and this has caused him some health problems, namely a back pain that means job opportunities were and are limited.  I have had a letter written by the defendant expressing his remorse, I am sure it is genuine.  The defendant also accepts he has to face the responsibility for his actions and knows a term of imprisonment is inevitable. I suggest that he use the time serving this sentence wisely, perhaps learning a skill or a trade. 

6.Normally a burglary of a domestic premise would attract a 3 year starting point when there are no aggravating or mitigating factors.  Normally to confront an owner of a premise in the middle of the night would be considered an aggravating factor.  But here I am going to take into account the defendant did not break into the premises, enter a bedroom or carry a weapon nor obviously scare anybody.  Therefore in this case I am not going to consider the facts aggravating nor will I add to the starting point I consider appropriate.

7.Defendant, please stand up. After considering plea, mitigation, family background and the facts of the case, I intend to for charge 1 take a starting point of 2 years and 9 months.  For charge 2, I intend to take a starting point of 2 years and 6 months.

8.You have pleaded guilty, you are entitled to a discount of one-third.  After that discount is applied, for charge 1 you are sentenced to 1 year and 10 months.  For charge 2, you are sentenced to 1 year and 8 months. 

9.I have to take into account the totality principle.  I order 2 months of charge 2 to be served consecutively to charge 1 and the balance served concurrently.  Therefore the total sentence for both charges is one of 2 years' imprisonment.