HKSAR v. Chan Chik Sum

DCCC 197/2016

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 197 OF 2016

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

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

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

REASONS FOR SENTENCE

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

1.The Defendant has admitted two counts of burglary, contrary to Section 11(1)(b) and (4) of the Theft Ordinance, Cap. 210.

Facts

2.At the material time, two brothers, Tong Shun-on and Tong Wing-sum, resided in the room next to the kitchen in Flat B, 24^th Floor, Ho Shun Fuk Building, 60 Sau Fu Street, Yuen Long, the premises that were burgled in both charges 1 and 2, hereinafter referred to as the ‘burgled room’.  The Defendant resided in another room in the same flat as the burgled room.

3.On 31 December, 2015, at around 0900 hours, Tong Shun-on, being the last one to leave the burgled room, left the room with all the windows and the door secured.  On returning to the room, they found one smartphone and HK$1,000 in cash missing from the room. A report was made to the police (Charge 1).

4.At around 10.30 a.m. on 14 January, 2016, Tong Shun-on was the last one to leave the room. When they returned to the room later that day, they found two smartphones, one tablet computer, RMB200 and some coins in cash were missing from the room (Charge 2).

5.At around 03.00 hours on 21 January, 2016, the Defendant admitted to Tong Shun-on and Tong Wing-sum that he had stolen four boxes of tissue from the burgled room. The brothers passed this information to the police.

6.At around 1620 hours on 24 January, 2016, the Defendant was arrested in the flat for the offence of ‘burglary’ and admitted under caution to stealing two smartphones and HK$1,000 in cash. This was subsequently post-recorded and the Defendant signed on the post-record in confirmation. In subsequent video recorded interviews under caution on 24^th and 25^th January, 2016, the Defendant said, inter alia, that he had entered the room twice without the consent of either occupant and these entries were within a month of the interview. The door of the room was locked on the first occasion but not on the second.  On the first occasion he stole one smartphone and HK$1,000 from the room. On the second occasion he stole 2 smartphones, 1 tablet computer, RmB200, some coins and 4 boxes of tissues.

7.A sketch of the premises depicting the room occupied by the victims as well as the Defendant was submitted, as were two photo albums of the premises in question.

Previous Convictions

8.The Defendant has 8 previous convictions in 5 court appearances, dating back to 2003, including one similar to the present charges in 2003.  His most recent conviction was on 3^rd December, 2015 for theft, when he was sentenced to 14 days’ imprisonment.  The present offences would have been committed very shortly after his release from prison.

Mitigation

9.No issue was taken by the Defendant on the contents of the Antecedent Statement read into the record save in respect of his employment history.   The Defendant is now aged 27 years. He was born in Hong Kong and educated to Form 5.

10.In respect of his employment, I was informed by Mr. Poon that the Defendant was in Australia on a working holiday from 2014 to 2105.  He was unemployed for a few months thereafter, and then found a job as a driver between August and December, 2015.  His most recent conviction for theft in December, 2015 involved a breach of trust as he stole from his employer.  In respect of the arson and burglary offences, these were in 2003 when he would have been quite young. It was submitted that the Defendant had been born with a birthmark, and endured laughter from his friends. He had undergone many operations as a result. The burglary and arson charges related to a friend’s house and were as a result of his being taunted by his friends.  Counsel submitted that his most recent conviction in 2015 was the only one involving dishonesty.

11.Counsel submitted in mitigation that the Defendant was also a tenant in the flat but of another of the rooms.  In the sketch of the premises submitted, he was shown as the tenant of the room next to the burgled room.

12.Counsel submitted that the Defendant did have emotional problems and sought help from social workers. With their encouragement, he went on a working holiday to Australia between 2014 and 2015. He met his wife in Australia. They returned to Hong Kong and got married on 14^th February, 2015 when his wife was already 7 months’ pregnant with their daughter, now one year old. I was also informed that the Defendant’s mother had had breast cancer 2 years ago and had had an operation. Although she was presently working, there was always the possibility of relapse.  Both the Defendant’s mother and his sister were in Court to show their support of the Defendant.  Counsel further submitted that the matter only came to light because the Defendant confessed his guilt to the brothers when he was confronted by them.   The brothers had also come to Court to show their support of the Defendant.  They had accepted HK$10,000 from the Defendant as full restitution for the stolen property in the 2 charges and this was confirmed by the Prosecution. They have also forgiven the Defendant. Counsel submitted that although one could say there had been a breach of trust as the Defendant was a neighbour, and knew the habits of the brothers, he had tried his best to avoid any confrontation as the chance of the brothers returning was low.  The room faced the main entrance and he would have noticed had the brothers returned. Counsel submitted that the victims would not have been as frightened if they had come upon the Defendant during the burglaries as he was known to them. Counsel referred to HKSAR v. Suen Chi Wai,  [2015] 5 HKLRD 33, where the Court said that the fear that a victim may encounter is what renders a domestic burglary particularly serious.

13.Much of what was submitted by Counsel in respect of the Defendant’s background was confirmed in the Background Report I had called for and which is now before me. Counsel for the Defendant has confirmed the contents. The Defendant’s parents divorced in 1998 and he has had little contact with his father since. The present whereabouts of his father are unknown.  His relationship with his mother and younger sister is good.  The Background Report disclosed that the Defendant’s relationship with his wife was quite stable until he began to indulge in gambling since February, 2015.  He borrowed from family and friends as well as financial institutions to fund his gambling activities.  The Defendant’s mother had sold the family’s public housing unit in August 2015 to repay the Defendant’s debts.  Although in the report, it was said that the Defendant’s wife and daughter, together with his mother and sister live separately in rented premises unknown to the Defendant to avoid disturbance from his debt collectors, Mr. Poon submits that the wife and daughter lived with the Defendant in the flat and only after the Defendant’s detention for the present offences have they moved to live with the wife’s mother in Tin Shui Wai.    The Defendant’s wife and daughter have applied for financial assistance through CSSA  and the wife’s mother assists in childcare. The Defendant told the interviewing officer that he committed the present offences due to greed and financial need.  He is now very remorseful.

Sentencing Considerations

14.I have carefully considered all that has been submitted in mitigation by counsel on behalf of the Defendant as well as the contents of the Background Report.

15.There is well settled sentencing guidelines for burglary of domestic premises. According to the guideline, the starting point for a single burglary of domestic premises committed by a first offender of full age where there are no aggravating or mitigating features is 3 years’ imprisonment. It was not in issue that the room that was burgled by the Defendant on 2 occasions was “domestic premises”.

16.Significant mitigation in this case is that the Defendant has pleaded guilty at the outset to both charges and has shown his remorse and full compensation has been made and accepted by the victims in respect of the stolen property for both charges.  I accept too that the victims have now forgiven the Defendant for his acts. These are all factors relevant to sentence.  Clearly, the Defendant’s gambling addiction had a part to play in his committing the present offences.  I accept what Counsel has said that the Defendant whilst on remand has had time to reflect on his misdeeds and he intends to turn over a new leaf.  I am told by Counsel that the Defendant’s friend has offered him employment once he is released and he wishes to take up his responsibilities as a father and a husband.  I hope he keeps his promise.

17.For burglary offences involving domestic premises, the normal starting point for a single burglary committed by a first offender of full age where there are no aggravating or mitigating features is three years’ imprisonment. The Defendant and the victims were neighbours in the same flat – they rented adjacent rooms in the flat. To that extent, there is an element of trust that has been breached by the Defendant in committing the present offences.  Counsel submitted that as the Defendant was known to the victims, the fear they may encounter if they came upon him in their room would be less. That may well be, but in my view does not justify a lower starting point. In the present case, I find there are no aggravating features in the commission of the offences in that the value of the stolen property is not large, the Defendant committed the offences alone, and the offences were committed at a time when the occupants had left the room.

18.I have considered that full restitution has been made and the victims have now forgiven the Defendant as well as the Defendant’s pleas and the other mitigation put before me. I also bear in mind that but for the Defendant’s admission to the brothers that he had committed the burglaries when confronted, he would not have been arrested.  I am going to lower the starting point for the burglary charges to 2 years and 6 months’ imprisonment on each charge to reflect these matters. The Defendant is entitled to a discount of one-third to reflect his pleas.  On each charge, he is sentenced to 1 year and 8 months’ (20 months) imprisonment.

19.The two burglaries committed by the Defendant are entirely separate and distinct offences, taking place some 2 weeks apart, and warrant consecutive sentences.  But I do bear in mind the totality principle of sentence.  I am satisfied that a total sentence of 2 years’ (24 months) imprisonment is sufficient to reflect the criminality of the Defendant’s conduct. I therefore order that 4 months’ of the sentence on Charges 2 be served consecutively to the sentence on Charge 1. The total sentence on the 2 charges is 2 years’ imprisonment.