HKSAR v. Cheung Chi Ming

DCCC 527/2016

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 527 OF 2016

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Reasons for Sentence

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1.The defendant pleaded guilty to one charge of burglary under section 11(1)(b) and (4) of the Theft Ordinance, Cap.210.

2.Particulars are that he on 21 April 2016 entered a domestic premises on the ground floor of No.2A Luk Tei Tong (House 2A) on Lantau Island as a trespasser and stole therein one loaf of bread.

Summary of facts

3.At 7:30am on the charge date, Ms Robertson left home, House 2A, without securing the window of the bathroom.

4.At around 1pm, Ms. Bautista, who works as a helper in a nearby house, saw someone pulled open the bathroom window of House 2A, left and returned three times and climbed in through the window on the third visit.

5.Ms Bautista recognized this man as the defendant who lives in a farm house adjacent to House 2B. She used her phone to record the incident and sent the footage to her employer Ms Mulloy, who notified Ms Robertson.

6.Ms Robertson came home at around 6pm and found that the security bars fitted on the inside of the bathroom window removed and placed on the floor of the washroom. A loaf of bread was missing. She went to confront the defendant of the incident, who denied entering her house. The matter was reported to the Police and the defendant eventually confessed to climbing in and taking a loaf of bread.

7.In the subsequent cautioned interview, the defendant admitted to using a screwdriver to dismantle the security bar. He knew how to do it because he was in fact the person hired by the owner of House 2A to install it.

Previous convictions

8.The defendant has 15 convictions from 6 court appearances. Of those, 10 are related to theft and 1 was for handling stolen goods. The latest conviction was in April 2015 for theft and he was sentenced to 3 weeks’ imprisonment suspended for 2 years and fined $1000. The defendant was therefore about half way into the suspended sentence when he committed the present offence.

Mitigation

9.The defendant is 38, born in Hong Kong and educated up to Form 1 level. He is married but lives alone in a licensed farm house on Lantau Island, while his wife and 11 year old daughter live together in another farm house.

10.I am told that the farm house that the defendant lives in is made of sheet metal (鐵皮屋).

11.The defendant had been unemployed for over a week at the time of the commission of the offence. He worked as a casual construction site worker before that. The defendant chose not to apply for CSSA, hoping to make a living on his own.

12.Mr Lee told the court that the defendant stole because he was hungry. He went up to House 2A 3 times, because he could not decide whether to enter the premises. Due to hunger and foolishness, he dismantled the security bar and entered the premises and stole the loaf of bread.

13.The defendant was hired by the occupant Ms Robertson to do some handy work on the premises before and they have a good relationship. With the benefit of hindsight, had the defendant informed her that he was hungry, Ms Roberson would probably have given him something to eat and he would not have committed the offence.

14.Mr Lee submits that the biggest mitigating factor is the defendant’s confession to the Police when he was first questioned. The defendant had apologized to Ms Robertson. The amount involved is trivial. There was no planning in the burglary, which was committed in broad daylight. There was no damage to the premises. Mr Lee pleads exceptional hardship of the defendant and invites the court to impose a lenient sentence.

15.In relation to the breach of suspended sentence, Mr Lee said that the defendant had stolen some air-refresher that were also trivial in value.

Sentence

16.The maximum sentence for burglary under section 11 is that of 14 years’ imprisonment. The guideline sentence for burglary of a domestic premises is a starting point of 3 years’ imprisonment for a first offender, subject to any aggravating or mitigating factors.

17.It is difficult to understand why the defendant would go to this length to steal just a loaf of bread. The entry was during daytime and I can assume that the defendant knew that no one was home when he decided to take off the security bar to enter the premises. Although the defendant claimed that he was hungry and so he decided to enter and steal, it is not the case that he was a homeless person wandering around looking for food. There was no urgency or desperation in his situation to excuse him from breaking into someone else’s house.

18.Furthermore, according to the summary of facts, we know that Ms Bautista was in a nearby house, if the defendant was truly desperate he could have gone to ring her doorbell and ask for some food or help. That would seem to be a more reasonable course of action than removing the bathroom window security bar of Ms Robertson’s house in order to steal some food.

19.I find it slightly worrying that the defendant was the person who installed the security bar for Ms Robertson in the first place. There is, however, no evidence to suggest that the installation was part of an elaborate plan for him to be able gain entry at some point in the future to steal from within.

The defendant’s background report

20.When Mr Lee first mitigated for the defendant and it was disclosed that he lived apart from his wife and young daughter, I was worried about the welfare of the family and in particular the child. I therefore called for a background report.

21.According to Probation Officer Laine, the family is already under the supervision of the Family and Children Protection Services Unit and has been since 2013. The reason for the wife moving out was she was fed up with the defendant’s drinking and domestic violence over monetary dispute. The wife and daughter moved away after the family protection service social worker’s failed intervention in 2013.

22.After moving out, despite not receiving any help from the defendant and a limited income, the wife has managed to pay for private tuition and swimming classes for their daughter, who is a grade A student.

23.I am told that the defendant would visit his separated family for free dinner and social money frequently. There is also allegation of him stealing his wife’s bank card to withdraw money on two occasions. The defendant is however not being sentenced for this.

24.Probation Officer Laine found that the defendant is obviously complacent with his present ‘lay back leisure life’.

25.Lastly, Mr Laine informed the court that Ms Robertson was fed up with the defendant’s betrayal of their friendship and had moved away and rented out the burgled premises.

Not an opportunistic crime

26.I move now to consider whether the defendant’s stealing amounted to an opportunistic crime.  For the following reason I find that it was not.

27.The defendant went up to the window 3 times and only on the third occasion did he climb into the premises. It was not the case that he by chance encountered an open window with no security bar at all. Nor was it the case that a security bar was there but already loosened or falling off. The defendant used a screwdriver, which was later found in his home, to dismantle the security bar in order to gain entry. It was not an opportunistic crime.

No aggravating factors

28.Having said that, none of the identified aggravating factors such as the burglary being carried out at night, when the victim was at home, goods of high value, planned and skilfully executed with heavy equipment etc. are present.

29.The defendant does have previous convictions but none are similar to the present charge. The latest one was in April 2015 when he was given a suspended sentence. I do not find his conviction record an aggravating factor.

Starting point

30.Although only a $12 loaf of bread was stolen, it is the disregard for the sanctity of the home that is the most culpable element in the case.

31.I find however the circumstances of the defendant’s commission of the offence is such that there should be a slight departure from the sentencing guidelines. The defendant could have taken other valuables in the house but he did not. He might very well have been driven by hunger when he foolishly decided to enter Ms Robertson’s house.

32.Bearing in mind that a sentence must reflect individual justice, I find that a proper starting point under the circumstances is that of 27 months’ imprisonment.

33.The only mitigating factor is the defendant’s guilty plea, for which I will give a one third discount.

34.The defendant is sentenced to 18 months’ imprisonment on the present charge.

Suspended sentence

35.The nature of the theft conviction behind the suspended sentence is not entirely dissimilar to the present offence. There was still another year of the sentence to run when the defendant decided to commit the burglary. I see no reason why the sentence should not be activated. I also see no reason why that sentence should not be served wholly consecutively to the burglary sentence.

36.I have considered whether the additional 3 weeks sentence would have a crushing effect on the defendant and concluded that it would not, given the length of the present sentence. 

37.The defendant is therefore sentenced to a total of 18 months and 3 weeks’ imprisonment.