HKSAR v. So Hoi Kong

DCCC 416/2016

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 416 OF 2016

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

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

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

Reasons for Sentence

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

1.The defendant has pleaded guilty to two burglaries of domestic premises in an estate called Tin Ping Estate, the defendant gained entry to both of the premises by using door keys that had been left outside the premises in altar cabinets for the convenience of the residents.

2.In the first burglary in time which occurred on 2 March 2016, the windows and the doors had been left locked.  Some pry marks had been found on the locks of the gate and door, and cash and electrical items and money worth some $21,500 had been taken.   

3.The second burglary in time, which is the 3rd charge, occurred on 5 March 2016.  The property was burgled during the day.  There were signs of ransacking, and valuables and money and jewellery valued at $81,000 had been taken. 

4.The CCTV recording showed a person who turned out to be the defendant entering the area.  The defendant cannot, it would appear, be formally identified from the CCTV recording.

5.The defendant was arrested on 5 March 2016.  He made four subsequent video-recorded interviews and made full admissions to his involvement in the two burglaries that form the charges today.  In both cases, he was aware of the keys left in the altar cabinet outside the location and used the key to enter the premises.  He appears to have entered the premises, knowing they were unoccupied.  He said he committed the burglaries because he was unemployed and had no money. 

6.The admissions made under caution would appear to be the substance of the evidence against the defendant on the two charges. 

7.The defendant’s antecedents are admitted.  He is now aged 43 years old.  He is divorced and has a son who he supports.  I find from this that he was discharged from Correctional Services Department custody on 16 September 2011.

8.The criminal record shows 15 previous occasions on which the defendant has been sentenced, and nine of those offences involved burglary or attempted burglary.  They date from firstly in 1997 where the defendant was committed for burglary and sentenced to 2 years’ imprisonment.  Further convictions in 2001, 2003 and 2006.  Finally, in 2009, the defendant was again sentenced for burglary.  And as I understand from the antecedent statement, he was released from that sentence of imprisonment in September of 2011.

9.It has been pointed out in mitigation that since the release of the defendant in 2011, this is the first occasion on which he has since then been convicted of burglary some five years later.

10.In mitigation, it is said the defendant is remorseful.  He has and did make as soon as he was charged full admissions to these offences.  He maintains his reason for committing the burglaries was because of financial difficulty he encountered.  During the five years following his release from prison, the defendant had been in employment and supported both his ex-wife and his son who were resident in the mainland.  It is when he lost his employment that he turned back to committing these offences.  As far as the burglaries were concerned, they were committed at a time when there would have been no one present in the premises.  The defendant acted alone.  No sophisticated equipment was used in the commission of the burglaries, and only limited damage would have been caused to the premises because entry was gained largely by using the keys.

11.As far as sentencing in cases such as this, the approach would be as follows.  These are domestic-premises burglaries.  In a normal domestic-premises burglary where there are no aggravating factors, a starting point of 3 years’ imprisonment after trial for a person of clear record is appropriate.  If the defendant is a persistent offender, this can be an aggravating factor.  

12.The defendant here is not of clear record.  He has a number of convictions for burglary.  It is submitted in mitigation that the five-year gap should be acknowledged when determining whether the defendant is a habitual, persistent offender.

13.However, I consider that the defendant’s return to committing burglaries must constitute an aggravating factor in these burglaries, and that is the only aggravating factor that exists in this case, but it does mean that the starting point for sentence on each of these charges should be one of up to 42 months’ imprisonment instead of 36 months’ imprisonment.  After one-third deduction for the defendant’s plea of guilty, this leads to a sentence of 28 months’ imprisonment on each charge.

14.I must also consider what the appropriate overall totality should be and also consider the fact that the defendant’s convictions in this case would largely be out of his own mouth, through the confessions he made to the police.  That is an additional factor showing remorse and can be considered outside of the remorse that falls within the one-third deduction normally applied. 

15.The offences are close together in time.  I consider that all things being equal, a further 6 months of the 3rd charge should be served consecutively to the 2nd charge.  That would lead to an overall sentence of 34 months’ imprisonment.  However, I intend to acknowledge the fact that the defendant made full admissions in reducing that figure by 2 months’ imprisonment.  So the overall sentence of imprisonment for these two offences should be one of 32 months’ imprisonment.

16.Therefore, I will order that 4 months of the 3rd charge is to be served consecutively to the 2nd charge, giving an overall length of sentence of 32 months’ imprisonment.