HKSAR v. Chow Yuet Kwong

DCCC 606/2016

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 606 OF 2016

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Reasons for Sentence

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1.The defendant faced one charge of attempted burglary[1] and one charge of common assault. Upon his pleading guilty to the attempted burglary charge, the common assault charge was ordered to be kept on file, not to be proceeded against the defendant without the leave of court.

Summary of facts

2.Mr Yip was delivering frozen chicken to the restaurant at Shop 2 of Honley Court in Tuen Mun on 21^st May 2016 at around 4am when he saw the defendant using a bicycle steering handle trying to prize open the padlock of the roller shutter of the restaurant. Mr Yip shouted at the defendant but he did not respond and continued to prize at the padlock.

3.The defendant then suddenly fled towards a rear lane still holding the steering handle. Mr Yip gave chase and caught up with the defendant outside shop 25A when the defendant lost his right shoe. The defendant nevertheless continued to run and Mr Yip continued to chase after him.

4.When they were near San Hui Market, a passer-by Mr Tai joined Mr Yip chasing after the defendant. The defendant dumped the steering handle near a rubbish bin close to Yan Ching Street.

5.The defendant was eventually arrested by police officer PC10105. Mr Yip refused medical treatment but did suffer redness on his waist where he was hit.

6.Under caution, the defendant admitted to using the steering handle bar to try to prize open the lock of the roller shutter of the restaurant.

Previous convictions

7.The defendant has appeared in court 49 times resulting in 61 criminal convictions. 12 of them were for burglary or attempted burglary. His last conviction was in March 2016 for shoplifting when he was imprisoned for 4 months. He was discharged on 16 May, just 5 days before his commission of the present offence.

Mitigation

8.The defendant is 51 and was educated up to primary 6 level. He has lost touch with his sister and two brothers.

9.When the defendant was in Lai Chi Kok, he had a long talk with a priest. The defendant realizes that half his life was spent in jail and he would like to turn a new leaf. The priest said he will introduce the defendant to volunteer homes upon his release, so that he will no longer have to wander around the street and have a place to stay.

10.Mr Kan, for the defendant, pointed out that there is no evidence to suggest that the defendant is a professional burglar and that the biggest mitigating factor is the defendant’s plea of guilty.

Sentence

11.It is trite law that burglary, and attempted burglary, of a non-domestic premises would attract a starting point of 2 and a half years’ imprisonment, subject to aggravating and mitigating circumstances.

12.The attempted burglary took place at 4am. Normally that would be a time when confrontation between burglars and victims would be unlikely in a non-domestic situation, but given the nature of Mr Yip’s work, such confrontation did occur. However, according to the amended summary of facts, the confrontation was brief and resulted in the defendant running away. I do not find this as an aggravating factor in relation to the commission of the attempted burglary.

13.I do, however, find the following two aggravating factors. First is the defendant’s 12 similar previous convictions for burglary or attempted burglary, with the last burglary related conviction being in September 2012 when he was sentenced to 25 months’ imprisonment.

14.According to his conviction record, the defendant was convicted on 12 other occasions after he had served the sentence for the said burglary. Of those 12 convictions, half were for theft. The defendant continued to show scant regard for other people’s belongings.

15.The second aggravating factor is the fact that the defendant committed the present offence just 5 days after his latest release from imprisonment on 16 May 2016. The defendant remained undeterred.

16.For these two aggravating factors, I raise the starting point by 3 months to that of 33 months’ imprisonment.

17.I find that the only mitigating factor is the defendant’s plea of guilty. As for the discount to be granted, Ms Khubchandani for the prosecution and Mr Kan agreed that the new sentencing discount guidelines laid down in the case of HKSAR v Ngo Van Nam, CACC 418/2014[2] and HKSAR v Abdou Maikido Abdoulkarim, CACC 327/2015 by the Court of Appeal do not apply in our present case, given that the judgment was delivered after the defendant’s first appearance in the District Court.

18.I, therefore, grant the defendant the full one-third discount for his guilty plea and sentence him to 22 months’ imprisonment.

19.Last but not least, I make the following observations regarding Mr Yip and Mr Tai.

20.Mr Yip could have walked away or kept quiet. No one would have thought lesser of him even if he had just shouted at the defendant but did not give chase. He, however, courageously went after the defendant and did not relent until his apprehension.

21.Mr Yip was not alone in his display of bravery. No doubt the joining in of the chase by Mr Tai provided support to Mr Yip and contributed to the eventual arrest of the defendant.

22.This court appreciates and commends the conduct of Mr Yip and Mr Tai.