HKSAR v. Cheng Kam Biu (also known as Cheng Kam Piu)

DCCC 978/2016

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 978 OF 2016

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REASONS FOR SENTENCE

1.The defendant pleaded guilty to a charge of "Burglary". He burgled a vacant residential unit trying to steal some bronze water pipes, CDs and VCDs.

Summary of Facts

2.Mr. FUNG (PW1) is the owner of 2^nd Floor, No.356 Un Chau Street, Cheung Sha Wan ("the Flat").  He moved out of the Flat in October 2011, but had stored some miscellaneous items there. 

3.About 11:00 a.m. on 22 August 2016, PW1's mother (Madam KAN) went to the Flat to clean up.  She confirmed that before she left, there was in the living room a paper box containing 118 CDs and VCDs.

4.About 10:40 a.m. on 26 August, PC 16692 (PW3) and WPC 15517 were patrolling along Un Chau Street.  The windows of the Flat caught PW3's attention.  He then went into the building and located the Flat.  PW3 found the main door of the Flat being secured with 3 locks.  He also heard some sound coming from inside the Flat.  He managed to contact PW1 and requested him to return to the Flat.  PW1 soon arrived.

5.Upon entering the Flat, PWs 1 and 3 saw the defendant squatting on the bedroom floor. Some bronze water pipes, a few pairs of pliers, a screwdriver and a cutter were lying on the floor near the defendant.

6.PW3 arrested the defendant.  Under caution, he admitted having heard from someone that comic books could be stolen from the Flat.  But he was unable to find any, so he decided to take away the VCDs and bronze water pipes to sell.  PW1 later discovered that some water pipes laid on the outer wall of the Flat were cut. The cost of repair was about $500.  PW1 also found signs of ransacking in the Flat.

7.In his video recorded interview, the defendant admitted in details how he burgled the Flat.  He explained how he climbed into the Flat through its windows and the windows of the adjacent unit.

8.Two fingerprints of the defendant were lifted from the surface of the paper box containing CDs and VCDs stored in the Flat.

Mitigation & Sentence

9.The defendant is 58. He has 8 conviction records, none of which is related to "Theft". Defence solicitor Mr. WONG informed me that the defendant separated with his wife in 2013; they have 2 adult children. The defendant worked as a construction site driver on a casual basis, earning about $12,000 per month. He was residing alone in Shamshuipo.

10.In mitigation, Mr. WONG submitted that the building at which the Flat is situated was left vacant pending redevelopment. Prosecuting counsel Mr. CHAU confirmed that most units in that building were vacant at the time of the offence. Mr. WONG further submitted that the defendant did not use any tools to gain entry into the Flat. No one was alarmed by his presence. He committed the offence alone and during day time. Since the building was vacant, the removal of some segments of water pipes presumably did not affect any resident.

11.Time after time, the court has expressed in very clear terms that being in financial difficulty (however serious) is no mitigating factor for committing a crime. I accept that the building being vacant is to the defendant's advantage. On the other hand, he has admitted unequivocally that he went to the Flat to steal (albeit comic books). On this basis, I cannot treat the defendant as an opportunistic burglar.

12.The normal starting point for domestic burglary is 3 years' imprisonment. Even if I accept Mr. WONG's submission to treat the Flat as non-domestic premises, the normal starting point would still be 2.5 years' imprisonment. Considering the building being vacant; the nature and value of the properties involved; no tools were used; and no person was alarmed, a lower starting point can perhaps be justified in the present case. Hence, I adopt a starting point of 2 years' imprisonment. With the guilty plea, the sentence is reduced to 16 months. Apart from this, I see no other mitigating factors which warrant any further reduction. I sentence the defendant to 16 months' imprisonment.