HKSAR v. Ko Chi Wai

DCCC 191/2016

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 191 OF 2016

----------------------

----------------------

---------------------

Reasons for Sentence

---------------------

1.The defendant has pleaded guilty to two charges of burglary and one charge of theft.

2.The facts are as follows.  The defendant on the early hours of the morning of 7 December 2015 stole from four cooked food stalls - some soft drinks and packets of noodles.  Items of Charge 1 were taken from a shelf.  That shelf was not secure or locked.  The items of Charge 3 were taken from a fridge.  The fridge had been secured with a padlock which had been removed.  The defendant also stole a can of paint - that is the stolen item of Charge 2 - from a construction site area where the contractor had left six cans out in the open.  The defendant took one of the six.  It is a theft charge, not a burglary charge because the area where the can of paint was taken from was not a locked area or considered premises.

3.What is also clear from the facts is that the cooked food stalls involved with Charges 1 and 3 at Fu Shan Estate were not walled premises or buildings in themselves, and they were certainly not secure or locked-up premises.  They were separated from the general common areas of that housing estate by heavy, thick, transparent plastic curtains or dividers. I am sure one can pass to the other side by either rolling them up or pushing them to one side.

4.The stolen items of Charge 3 were in fact found on a stairwell of a building.  The defendant did not actually take them home after he had moved them there from the cooked food stall.

5.When the police became involved, they viewed the CCTV footage of Fu Shan House in that area.  I am sure that having seen the defendant on the CCTV footage, they were able to identify him, and not long after beginning their investigation, they went to the defendant’s home.  He lived above the cooked food stalls.  The defendant was not home but items of Charges 1 and 2 were found inside his premises.  His mother told the police that those items, noodles and drinks, had appeared at about 2.30 am.

6.The defendant was arrested later the next day. When he was arrested and cautioned, he admitted that he had stolen drinks and noodles.  In a subsequent video-recorded interview, he made further admissions, including explaining he stole the can of paint to repaint his premises.

7.The value of the items of Charge 1 was $110, the can of paint of Charge 2 was worth $550, and the drinks and food of Charge 3 totalled $224.  All items were recovered.

8.In mitigation, I have been told that the defendant is an alcoholic, and in fact when he stole, when he committed these three offences, he was drunk, which explains why after he stole items 3, he left them on the stairs instead of taking them home. 

9.The defendant is not a man with a clear record. He has 15 convictions obtained over 12 court appearances.  Seven of those convictions are theft convictions, all dealt with in the magistracies.  He has no previous convictions for burglary.  Charges 1 and 3 of this case are his first burglary convictions.

10.I will note that in my view and on these facts, they are technical burglaries.  I come to that view from taking into account the set-up of these cooked food stalls.  They are unsecure and have no walls, and that will be a view that will be reflected in my sentence.

11.In mitigation, I have been told that the defendant is 45 years old, divorced with an 8-year-old daughter living with his ex-wife.  He himself lives with his 70-year-old mother.  He has been receiving for over 10 years treatment for alcohol addiction.  I have had a letter written by the defendant which states he wants to quit alcohol and asks for leniency.

12.Defendant, please stand up.  Normally, there is a starting point of 2 and a half years where a non-domestic premise is burgled.  But as I have said, I take into account that this in my view is more of a technical burglary for Charges 1 and 3.  These offences are not burglaries where there is obvious breaking in and entering or entering without authority of very obvious premise or dwelling.  I also take into account the defendant’s plea, co‑operation after his arrest, admission under caution, mitigation and explanation put forward as well as the value of the items stolen and recovered.   

13.Having taken all those factors into account, for Charges 1 and 3, the burglary offences, I will take a starting point of 21 months.  I will take for Charge 2, the theft offence, a 6 months’ starting point.  The defendant has pleaded guilty.  He is entitled to a discount of one-third.  After that discount is applied, for Charge 1, the defendant is sentenced to 1 year and 2 months’ imprisonment; for Charge 2, 4 months’ imprisonment; for Charge 3, 1 year and 2 months’ imprisonment.

14.I take into account the timing of all three offences, and I order that all three be served concurrently.  Therefore, the defendant is sentenced to a total of 1 year and 2 months’ imprisonment. Understand?

DEFENDANT: Understand.