HKSAR v. Ku Yuen Chi

DCCC 597/2016

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 597 OF 2016

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REASONS FOR SENTENCE

1.Ku Yuen Chi you have pleaded guilty to three charges of burglary, contrary to section 11 of the Theft Ordinance.[1]

2.Full particulars of the offences are set out in the facts admitted by you on 21 December 2016.  In summary between December 2015 and April 2016 you burgled three homes. 

Charge 1

3.In the morning of 29 December 2015 the owner of Flat B, 7/F, Yan Wing Mansion in Ngau Tau Kok locked the door and went to work.  On returning home the owner found her home had been ransacked.  A Rolex watch, valued at $67,300 and two G-Shock watches had been stolen.

Charge 2

4.In the morning of 29 March this year the resident of Room B, Flat B, 7/F, Un On Building in Cheung Sha Wan locked the door and went to work.  Later the same day the landlady called informing him the room had been burgled.  The door of the room had been prized open and the room ransacked.  450RMB and HK$200 were found stolen.  

Charge 4

5.In the afternoon of 12 April this year you burgled Room D, 4/F, No. 99 Kweilin Street in Sham Shui Po while the resident of the room was asleep in the bedroom.  You stole three mobile phones; a gold pendant; a bank card; an Octopus card; HK$1000 and some foreign currency.    

Arrest

6.You were seen by PC 1333 coming out of Room D and going to a currency exchange shop where you exchanged the foreign currency stolen in the burglary.  In the meantime other police officers discovered the burglary.  You were intercepted and found in possession of the property stolen in the burglary.  Under caution and in a subsequent video recorded interview you admitted the burglary.  You also admitted the burglaries committed in December 2015 and March this year.

Mitigation

7.In passing sentence I have carefully considered everything said on your behalf by Mr Chan together with your mitigation letter.  I take into account that having spent most of your life in prison you now wish to start afresh so that you can spend more time with your family. Your determination to change your life is shown by your recent support for the organ donation registration scheme.

Starting point

8.The correct starting point for a single burglary of non-domestic premises committed by a first offender of full age where there are no aggravating or mitigating features is 3 years imprisonment.

Aggravating features

9.You have appeared in court on 16 occasions amassing a total of 25 convictions, 12 of which are for offences of dishonesty with 8 for burglary.  You last appeared in court in January 2012 when you were sentenced to 4 months imprisonment for an offence of possession of drugs.   Your last conviction for burglary was in 2009 when you were sentenced to 2 years imprisonment. 

10.Although your last burglary was in 2009 I am satisfied you are nevertheless properly to be regarded as a persistent offender.  I enhance the starting point for each offence by 3 months to 3 years and 3 months imprisonment. 

11.You admitted that you committed the second burglary with a person called “Wai Jai”.  The commission of burglary by two or more persons is an aggravating feature for which the starting point may be increased.  However taking into account that without your confession there was no other evidence that you were the burglar I do not increase the starting point by reason that you committed the burglary with someone else.

12.Giving you full credit for your plea of guilty reduces the sentence on each charge to 2 years and 2 months imprisonment. 

Confession

13.Mr Wong confirms that without your confession there was no other evidence for charge 1 and charge 2.  In HKSAR v Ma Ming[2] the Court of Appeal held that the fact that a frank confession provides the only evidence which supports the charge did not entitle the defendant to a further discount over and above the one-third discount. 

14.The Court of Appeal in HKSAR v Ngo Van Nam[3] reaffirmed the position that a judge was not obliged to give a discount over and above the one-third discount explaining that the mitigating factor of a confession was subsumed within the one-third discount.   

Totality

15.The court in Ma Ming did however say that when considering the totality of the sentence a court, in exercising its discretion, can take into account the fact that the frank confession of a defendant provides the only evidence to support the charge. 

16.Where offences are committed in different premises against different victims on different dates, consecutive sentences should be imposed, subject to the totality principle. 

17.Taking into account all the circumstances of the three burglaries including the Rolex watch stolen in the first burglary has not been recovered; only a small amount of money was stolen in the second burglary and your frank confession to the first two burglaries, I am satisfied that a total sentence of 3 years and 4 months imprisonment is appropriate.

Sentence

18.You are convicted and sentenced as follows:

CHARGE 1 – 2 YEARS AND 2 MONTHS IMPRISONMENT;

CHARGE 2 – 2 YEARS AND 2 MONTHS IMPRISONMENT WITH 6 MONTHS CONSECUTIVE AND 20 MONTHS CONCURRENT TO CHARGE 1; AND.

CHARGE 4 – 2 YEARS AND 2 MONTHS IMPRISONMENT WITH 8 MONTHS CONSECUTIVE AND 18 MONTHS CONCURRENT TO CHARGES 1 & 2.

19.The total sentence to be served by you is 3 years and 4 months imprisonment, which I am satisfied properly reflects your criminality on the three charges.

[1]  Cap 210.

[2]  [2013] 1 HKLRD 813 at §32.

[3]  [2016] 5 HKLRD 1 at §41.