HKSAR v. Lee Ho Kong

DCCC 524/2016

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 524 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.

Facts

2.The burgled premises herein, Room 1216, 12^th Floor, Hoi Yu House, Block E, Hoi Fu Court, No. 2 Hoi Ting Road, Mong Kok, Kowloon, are domestic premises.

3.Mr. Ho Chun-yin has been living at these premises alone since 2015.  He has the habit of regularly cleaning the flat, including cleaning the wooden door, windows and iron gate.

4.At 11.30 hours on 4 October, 2015, he left the premises after securing the windows, the wooden door and the iron gate.  When he returned at 19.00 hours the same day, he found the iron gate unlocked, the wooden door left ajar and there was damage near the lock of the wooden door. There were signs of ransacking inside the premises. The door of the cabinet near where the TV was, where he stored his cameras, was ajar. A photograph album of 13 photographs was submitted by the Prosecution and viewed by the Court, and the photographs depicted the condition of the premises.  The photo album was admitted by the Defendant and Counsel on behalf of the Defendant.

5.Upon checking, Mr. Ho found property as listed in the particulars of the charge, totally valued at $20,500 to be missing. None of this has been recovered. A report was made to the police.

6.Fingerprints were lifted by a police officer from the inside of the wooden door frame and these matched that of the Defendant. The Defendant was not known to Mr. Ho.  The Defendant was put on the ‘Wanted List’ and Watch List’ by the police. He was subsequently intercepted and arrested for the present offence on 19 April, 2016.

7.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

8.The Defendant’s criminal record dates back to 1992.  He has 26 previous convictions in 23 court appearances, including 4 for burglary and 9 others that are dishonesty related, his most recent conviction being on 6/6/2014 when he was sentenced to 33 months’ imprisonment for an offence of burglary.       

Mitigation

9.The Antecedent Statement was read into the record by the Prosecution – no issue was taken on the contents. It disclosed that the Defendant was born in Hong Kong and aged 37 years and educated to Form 5 in Hong Kong. At the time of his arrest he was unemployed. He is married and lives with his wife and two daughters in Hong Kong. He had the habit of consuming ‘ice’ of about $300 each day.  He is a member of the ‘Sun Yee On’ Triad Society.

10.Mr. Fung for the Defendant submitted that the Defendant’s greatest mitigation was his plea of guilty.  This was a timely plea and the Defendant should be given the customary one-third discount for his plea. Mr. Parry for the Prosecution took no issue with this. 

11.It was further submitted on behalf of the Defendant that his wife was in Court to show her love and support for the Defendant. The Defendant realized that he would be unable to spend time with his family because of this conviction.  Mr. Fung also submitted that although the Antecedent Statement discloses that the Defendant is a member of the ‘Sun Yee On’ Triad Society, this was when he was in his 20’s and he has had no contact with the Society in the intervening years.  This can be seen from his criminal record – there are no previous triad related convictions.  Mr. Fung sought leniency on behalf of the Defendant.

Sentence

12.Mr. Fung accepted that there was a well-settled sentencing guideline for burglary of domestic premises – the appropriate 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.

13.I find that there are no aggravating factors in that the the burglary was during the day and not in the small hours.  There was no one there – no one had been alarmed or disturbed, and no violence had been used. There was little possibility of confrontation with any occupier.  The Defendant acted alone. However, the value of the stolen property cannot be described as small.  There was damage caused to gain entry into the premises. The premises were ransacked.

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

15.The Defendant is of full age and he is not a first offender – he has four previous convictions of a similar nature.  He is a repeat offender.  The Defendant also has scant regard for the law and the latest sentence did not deter him from committing the present offence. I find his repeated offending an aggravating factor.

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

17.I have borne in mind all that has been urged upon me in mitigation on behalf of the Defendant. Bearing in mind the sentencing guidelines, but taking into consideration the aggravating factors, I will adjust the starting point upwards by 6 months.  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.