HKSAR v. Lee Ka Man

DCCC 411/2016

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 411 OF 2016

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REASONS FOR SENTENCE

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1.The Defendant pleaded guilty to one count of burglary, contrary to Sections 11(1)(b) and (4) of the Theft Ordinance, Cap. 210.

Summary of Facts

2.The burgled premises herein are domestic premises.

3.On 11 September, 2015, Ms. Yang Jieyi secured the premises at No. 19A, Mo Fan Heung, Yuen Long and left.  She returned at about 4 p.m. that day and discovered the gate of the premises opened, the window frame beside the metal gate prized open, the cost of repair being HK$500, and a notebook computer worth HK$3,000 and an iPad mini worth $3,000 were missing from the premises. A report was made to the police.   DNA was lifted from the floor inside the premises near the window frame that had been prized open. This DNA matched that of the Defendant.  The Defendant was subsequently arrested and cautioned.  He remained silent under caution.  A travel index check (TIC) was done and this disclosed that the Defendant was in Hong Kong at all material times.

4.By his plea, the Defendant has admitted that he entered the premises as a trespasser and stole the items as set out in the particulars of the charge.  I was satisfied beyond all reasonable doubt that the facts supported the charge and  accordingly I convicted the Defendant on the charge.

Previous Convictions

5.The Defendant has 14 previous convictions in 10 court appearances.  10 are dishonesty related, of which 3 are for burglary, his most recent conviction being on 14/8/2012 when he was sentenced to 30 months’ imprisonment for an offence of burglary.  

Mitigation

6.The Antecedent Statement was read into the record by the Prosecution – no issue was taken on the contents, save in respect of paragraph (h) – the Defendant says his 2 daughters are aged 12 and 21 years, and his younger daughter lives with his mother.  The Antecedent Statement disclosed that the Defendant was born in Hong Kong and aged 45 years and educated to Secondary 1. Prior to his arrest he was a part-time plumber and electrical technician. He is divorced and has 2 daughters. He lived with a friend in Dongguan in China.

7.Ms. Lai submitted that the Defendant was aged 45 years. He had been married twice, but both marriages had ended in divorce.  His father is aged 70 and his mother aged 65 years, both living in Hong Kong.  His younger daughter now aged 12 years lives with his mother and he contributes $4,000 each month towards his daughter’s living expenses.  Since his last release from prison, he had worked for the Man Fai Construction Co. However, the company was wound up last year, and he was owed $13,000 in wages. The Defendant had gone to the village in question to look for his ex-employer who had a warehouse in the village but in vain.  On his way to take public transport to leave, he passed Ms. Yang’s village house and saw her leaving and he did not see anyone else inside through the window. He took the opportunity to see if there was anything to steal from the premises. He found a spanner in the tool box in the garden and used it to gain entry into the house.  None of the stolen property has been recovered and I am told that any compensation is unlikely.

8.Counsel submitted that the offence was not premeditated but rather it was opportunistic. He acted alone. It was not a sophisticated or well-planned robbery – there were no aggravating features.  Also, the burglary was between 2 and 4 p.m. and not in the small hours.  The Defendant went into the premises after ensuring that there was no one there – no one had been alarmed or disturbed, and no violence had been used.

9.While she accepted that there is a well settled sentencing guideline for the burglary of domestic premises that 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 should be 3 years’ imprisonment, she submitted that this was not a straight jacket.  She submitted the authority of HKSAR v. Chung Cheuk Pang, CACC 104/2016, wherein a lower starting point had been adopted by HH Judge Yau in the District Court to support this. The facts therein are quite different from the present facts. Also, this was an application for leave to appeal against conviction and sentence, and the Court had refused leave to appeal against sentence, and only granted leave to appeal against conviction.  I do not find this decision of any assistance in determining the appropriate sentence.  The facts are clearly distinguishable. Here, the window frame next to the metal gate had been prized open to gain entry into the premises – the window frame was damaged and had to be repaired.

Sentencing Considerations

10.In the present case, I find there were no aggravating features in the commission of the offence in that the value of the stolen property is not high and the Defendant committed the offence alone. No one was in the premises at the material time and there was little possibility of confrontation with any occupier.

11.Save for his plea of guilty, there is really little mitigation of weight before me.  

12.The Defendant is of full age and he is not a first offender – he has three previous convictions of a similar nature.

13.An immediate custodial sentence is the only appropriate sentence in the circumstances of the offence and the Defendant.   

14.I have borne in mind all that has been urged upon me in mitigation on behalf of the Defendant as well as the authority that has been submitted. After considering the facts of the case and the mitigation put forward,  I would take as a starting point 3 years and 6 months’ imprisonment, discount this by one-third to reflect the Defendant’s plea, which in my view is the only mitigation of weight before me, and sentence the Defendant to 2 years and 4 months’ (28 months’) imprisonment.