HKSAR v. So Kam Loi

DCCC 933/2016

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 933 OF 2016

----------------------

----------------------

---------------------

Reasons for Sentence

---------------------

1.The defendant has pleaded guilty to one offence of burglary, and it could be described as a non-domestic-premises burglary.

2.The facts admitted by the defendant show the burglary occurred at a restaurant in Tai Po in the New Territories.  The restaurant had been closed and money placed in the cashier counter at 3 am on 19 August 2016.  The restaurant had been opened at 5.30 am on the same day, and the person who opened the restaurant was working in the kitchen which would be at the back of the restaurant, but the roller shutter of the restaurant was left ajar.

3.Now, the person working in the kitchen heard some noise at the front.  She came out in time to see the defendant standing inside the cashier counter taking something from the drawer and leaving the restaurant.  It was found that in fact cash of $3,000 that had been placed in the drawer had gone missing and that the drawer had been prised open with a chopper which had been left there, and this was clear from the CCTV camera installed in the restaurant which showed the defendant prising open the drawer with the chopper and taking the money away.

4.Now, the defendant admitted this under caution. He was not arrested until 22 August, and by that time, he had spent the money. So no money could be recovered.

5.As far as the defendant’s antecedents are concerned, he is a 47-year-old man, comes from a fishing family, fisherman family.  He is described as a drug addict.  He has a large number of convictions totally recorded 41 dating back to 1993, and the bulk of the convictions are for theft and attempted theft.  There are offences of going equipped for stealing and also an offence of burglary in 2015.  The defendant has been sentenced to probation and drug addiction treatment centre, and the large number of sentences of imprisonment are largely for theft and theft of vehicle, and those sentences range up to 10 months’ imprisonment and the most recent of those being on 22 July 2015 when the defendant was sentenced to 10 months’ imprisonment for burglary.  His last conviction was on 21 June 2016 for theft, and he received a sentence of 4 weeks’ imprisonment.  And I am informed by the Correctional Services Department that the defendant is currently serving a sentence of 3 days’ imprisonment for the non-payment of a fine.  That sentence will expire on 17 December 2016.

6.As far as this matter is concerned, the case can be classified as a non-domestic-premises burglary.  It is a walk-in type of burglary.  Because the door was left ajar, so the defendant did not need to prise anything to get into the premises.  However, the burglary did occur at a time when there were people inside the premises.  So it is one of the more serious forms of that kind of burglary.

7.There is a clear guideline sentence for the starting point for non-domestic-premises burglary, and that is for a person of clear record after trial can expect a starting point for sentence of 30 months’ imprisonment.  Of course, the defendant is not a person of clear record.  I make it clear I see no reason to depart in this case from the guideline sentence as the starting point.  

8.There is an aggravating factor which is the defendant’s many, many convictions for offences of dishonesty and also the fact that he has committed this offence before as most recently as 2015, and it is clear that previous sentencing has not deterred the defendant from either committing offences of dishonesty or from recommitting offences of burglary.  I consider that aggravating feature will increase the sentence by 3 months’ imprisonment. 

9.That leaves me with a starting point for sentence of 33 months’ imprisonment.  My understanding is the defendant has indicated the plea of guilty and is entitled to a one-third discount from that sentence which leaves a final sentence of 22 months’ imprisonment which will be served consecutively to the 3 days he is currently serving.  So it is 22 months’ imprisonment.