HKSAR v. Cheung Ching Nim

DCCC 353/2016

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 353 OF 2016

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Reasons for Sentence

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1.The defendant has pleaded guilty to two offences of burglary committed in early September of last year. They are both non-domestic premises burglaries.

2.The facts show that the offence was committed of what is described as a slope maintenance site in Tai Po.  The site was fenced, and inside the site there were two offices.  They appear to be temporary structures.  One was a container office, and the other was described as a two-storey office.  There was no security or CCTV at the site.

3.The site and the offices were secured at around 6.15 on the evening of 1 September 2015, and the next day, at about just after 0820 hours on 2 September, it was found that the offices had been broken into.  In the first office - that is described as “Office A” - the window had been opened and a computer monitor valued at $1,500 had been taken. In the other office - that is “Office B” - the window had been broken, and nine computer monitors valued at $13,500 had been taken.  So there was a total of 10 computer monitors taken, valued at $15,000, and damage associated with the break-ins of $5,000.

4.The defendant was identified from a fingerprint and palm print left in the building.  He was interviewed in February of 2016, and admitted committing this offence.  He said he had sold all the computer monitors at $100 each, so having gained about $1,000 from the offence, and that he had committed the offence on his own.

5.The defendant’s antecedents are admitted.  He is aged 34.  He had been educated in Hong Kong and then studied in Germany.  Most recently he was sentenced to 2 years’ imprisonment on 6 January 2016, so he is in fact serving that sentence at this time and will be for a period in the future.

6.The defendant has in fact five previous court records.  In 2014 he was sentenced to a community service order for offences in relation to theft of a vehicle and taking a conveyance.  He was also sentenced to imprisonment for 4 months for going equipped for stealing; in 2015, a sentence of imprisonment for theft and giving false information to a pawnbroker; and finally, this year, on 6 January, as we now know, a 2-year sentence of imprisonment for what was a domestic premises burglary committed in March of 2015.

7.In mitigation, the defendant says he is remorseful.  Before being imprisoned he had lived with his elder brother and mother in Tai Po.  He was originally trained as a printer, and had come to Hong Kong when he returned from Germany to operate a printing factory.  The defendant has tried businesses in printing and also recycling which have been unsuccessful in the past.  He also was a lorry driver and he purchased his own lorry, which again was unsuccessful for him.  The defendant, since the failures of his businesses, has involved himself in petty crime, finally escalating to committing burglaries.

8.His known history of burglary then is the domestic premises burglary, committed with another person, in March 2015, and then these burglaries later on in September of the same year.

9.As far as sentencing is concerned, I must determine a correct starting point for sentence for each of these offences, determine a correct overall totality for sentence for these two burglaries, and then finally, determine how that sentence should relate to any other existing sentences of imprisonment.

10.These are non-domestic premises burglaries. There is a clear guideline for sentencing in respect of these offences.  A person of clear record, convicted after trial, can expect a starting point for sentence of 2½ years’ imprisonment.  Certain aggravating factors can lead to an increase in that starting point for sentence.

11.In this case, the relevant aggravating factor will be the defendant’s previous convictions for burglary in January of 2016. That is an aggravating factor in both burglaries to which the defendant has pleaded guilty.  Because of this aggravating factor, I will adopt a starting point of 3 years’ imprisonment in respect of each of these burglaries.

12.After the defendant’s plea of guilty is factored in, that leads to a sentence of 2 years’ imprisonment on each of the charges of burglary.

13.There are two offences involved here.  The prosecution has correctly identified them as two separate and individual burglaries.  As a matter of law, they must seem to be so, but as a matter of sentencing, a different approach can be taken.  They were committed at almost the same time, in the same premises.  They, in effect, are one two-part burglary involving taking a total of $15,000 worth of computer monitors.  These offences are so closely related in location and timing that I consider that they should be properly served concurrently to each other.

14.So the overall sentence for these two burglaries will be one of 2 years’ imprisonment.

15.The defendant is currently serving a sentence of 2 years’ imprisonment imposed on 6 January 2016.  That is in respect of a burglary that actually took place on 7 March 2015, some six months-odd before these burglaries, so I could order that this sentence be served entirely consecutively, but I must also consider whether any part of it should, as a matter of overall totality, be served concurrently.

16.I do consider that I must bear in mind the overall totality of sentence for the whole series and the whole criminality of the defendant from March to September 2015.  I do also consider that if the court on 6 January 2016 had had all three of these offences to consider, then at least some part of the sentence in respect of these two offences would have been considered to be served concurrently.

17.In order to achieve what I consider to be the correct overall totality for this defendant, I will simply order that 14 months of these sentences be served consecutively to his existing sentence.