HKSAR v. So Chi Ping

DCCC 188/2016

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 188 OF 2016

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Reasons for Sentence

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1.The defendant has pleaded guilty to two charges. The 1st charge is of burglary committed on 30 November 2015, and the 2nd charge is attempt to commit a burglary committed on 6 December 2015.

2.The premises in question for both offences are the same.

3.The defendant has agreed the facts of the case, and in summary, the case is as follows.  The premises relate to a restaurant in Tai Po in the New Territories.  It is a two‑storey restaurant, consisting of a ground floor and a 1st floor unit.

4.The burglary was committed in the morning of 30 November 2015.  The manager of the restaurant, in the early hours of the morning, found that a window had been smashed and the restaurant had been ransacked.  What was taken were three computers, a printer, a cash register and cash of, totally, $25,000.

5.The premises were covered by CCTV cameras, but they had been stuck with tape.  Nevertheless, the camera inside the restaurant captured the defendant gaining entry into the restaurant via the smashed window on two separate occasions on 30 November 2015 in the early hours of the morning.  The defendant had dressed himself differently on both occasions when he entered.  The defendant was recognised from the CCTV footage.

6.The attempt to burgle the premises took place some days later, on 6 December 2015.  The defendant was in fact arrested at the scene on that occasion.  Again, the attempt to enter occurred in the early hours of the morning, at 5.10 am on 6 December 2015.  A person living opposite heard a loud sound from the restaurant.  That same person saw the defendant, as it was found out to be, throwing a hard object at the window of the restaurant.

7.The defendant was subsequently arrested at about 6 in the morning.  Under caution, the defendant said he was under the influence of drugs and did not know what had happened.

8.The defendant was sent to hospital, but rearrested on 7 December 2015, and was subsequently interviewed by video‑recorded interview.

9.Various CCTV cameras located in the area captured the defendant sticking adhesive tape on the window of the restaurant and also attempting to enter the restaurant.

10.The defendant’s antecedents show that he is aged 48 years old.  He has a number of previous convictions dating back to 1985.  The latest conviction of the defendant is in fact in 1999, when he was sentenced to imprisonment for 4 weeks for criminal damage.  In the intervening years, the defendant was convicted on a number of occasions for offences involving drugs, both possession of drugs and trafficking in the drugs.  The defendant received sentences of drug addiction treatment centre and imprisonment.  But in the defendant’s favour, it can be said he has not been convicted of any criminal matter for a substantial period prior to the offence on this occasion.

11.As far as the defendant’s background is concerned, he lives, I am told, with his father and brothers, and he is married, but his wife is in the mainland.  At the time of the offences he was unemployed and relied upon his savings.  He attributes the commission of this offence to the financial burden that he had.  He has also been unwell in the past.  He has, as we can see from his criminal record, a history of drug abuse, abusing both ketamine and cough mixture, and he still suffers from that unfortunate addiction.  He has had a dislocation to his spine, but he also suffers from kidney problems.  He has an operation to be arranged, but I am told at this stage he is in what is described as a stable condition.

12.As far as the offences themselves are concerned, it is clear from the CCTV footage and otherwise that he acted alone in these matters.  It is said that the offences themselves were not sophisticated, and they relate to commercial premises rather than residential premises.

13.As far as sentencing for offences of burglary is concerned, the starting point for sentence is well defined by authority.  In the burglary of a non-domestic premises, or a commercial premises, the starting point for sentence for a person of clear record, after trial, is 30 months’ imprisonment.  That would be the appropriate guideline for the 1st charge here.

14.It is clear also that that guideline would be appropriate for the attempt to commit the offence as well that we find in the 2nd charge.

15.Looking at the burglaries themselves, as counsel for the defence said, the defendant clearly acted alone.  They are relatively unsophisticated.  The defendant seems to have changed clothing and also to have tried to conceal some of the CCTV cameras, or place concealment on those cameras, but I do not believe those lift it to a level of sophistication where that becomes an aggravating factor in the offence.

16.There is some damage caused to the premises, but I see no grounds to increase the starting point for sentence.  There are no aggravating factors which warrant that.

17.The mitigating factor will, of course, be the defendant’s pleas of guilty, which will entitle him to a one‑third discount from the starting point for sentence.

18.In respect of each charge, the starting point for sentence will be 30 months’ imprisonment, reducing that to 20 months’ imprisonment for the defendant’s plea of guilty.

19.The offences are committed on separate occasions, and so can be served consecutively.  However, to serve these sentences in full consecutively would lead to an overall sentence that would be too long for the general criminality involved in this case.  Clearly, as they are on separate occasions, some part of the second sentence must be served consecutively to the first.  However, I do bear in mind that on the face of it, nothing was taken in respect of the second matter, and the defendant was easily located at the scene.

20.What I shall order then is, in respect of the 2nd charge, that 3 months of that sentence be served consecutively to the 1st charge.  I believe that also gives a correct overall totality for the defendant’s criminality.

21.So the overall total sentence will be one of 23 months’ imprisonment.