HKSAR v. Ng Kam Yuen

DCCC 672/2016

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 672 OF 2016

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REASONS FOR SENTENCE

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1.The defendant pleaded guilty to one charge of Burglary contrary to section 11(1)(b) and (4) of the Theft Ordinance, Cap 210.

Facts

2.In summary, on 9 February 2016 the defendant burgled a residential flat in Kowloon Tong when the occupier couple of the flat, Madam Lo and her husband, were out paying Chinese New Year visits to their relatives and friends.  Before leaving the Flat for the visits, Madam Lo checked that the windows inside the Flat were locked and secured.  She also locked the front door of the Flat.  At about 11 pm of the same day, they returned to flat and found that the door chain had been set in place.  Madam Lo noticed signs of ransacking inside the Flat and found that one pen, one red coloured rucksack and one gold colour wrist watch at a total worth of approximately $2,500 had been stolen from the Flat. 

3.Police investigation revealed that prize marks were found on the metal frames of windows inside the kitchen of the Flat and a window grille had been dismantled.  A rucksack not belonging to the couple was also found on the floor of the kitchen and inside which a mobile phone complete with a sim card and a memory card, a pair of black gloves, surgical masks, a metal folded multi-purpose knife, two bundles of rope with two metal hooks and a plastic bottle containing water were found.  The mobile phone was examined and found to contain the defendant’s photos.  Inquiries with the sim card service provider confirmed that the defendant was the registered subscriber from 21 Jan 2016 and remained active as of the last day of inquiry on 8 December 2016.  The movement record from the Immigration Department showed that the defendant was present in Hong Kong from 30 January 2016 to 26 March 2016.  As the defendant’s identity was unearthed, he was placed on the watch list by the police.  On 30 May 2016, he was arrested by the police when he attempted to leave Hong Kong for the Mainland via the Lo Wu Control Point. 

Criminal Record

4.The defendant had previously been brought before the court on 15 occasions involving altogether 26 offences.  Most of them were dishonesty related offences and five of which were burglary offences.  The last conviction in 2010 involved two offences including a burglary offence. 

Mitigation

5.The defendant, aged 55, was born in China and received education up to secondary level in the Mainland.  He came to Hong Kong in 1979 and has ever since been working as a renovation worker.  He suffers from gout and is on medication.

6.He has a healthy family background.  Although he is divorced, he has a good relationship with his ex-wife.  They have 5 children and the two youngest children are university students.  The other three children were born out of the wedlock of his ex-wife’s former marriage.  All three of them were adopted by the defendant when they aged between 7 and 12 and have since been using the defendant’s surname.  The defendant has always regarded them as his own children.  His ex-wife is also in court to give him support.

7.After his release from prison about 5 years ago, he worked on a casual basis and earned about $7,000 per month.  Almost the whole amount of his income was contributed to the family.  He had not committed any offence until the present one.

8.Around the end of 2015, his elderly mother was sick and stayed in a hospital in the Mainland.  The medical expenses came up to around RMB10,000. At the time of the offence, he had almost used up all his savings to pay the medical expenses.  He therefore committed the present offence for money.  His mother passed away in December 2016.  He feels extremely sorry for not having been able to accompany her in her last hours and attend her funeral.

9.The loss suffered by the victim was not a huge amount.  The windows of the Flat were not seriously damaged.  Nobody was hurt or threatened.  The court is invited to adopt a lenient starting point.

Sentence

10.The proper starting point for burglary of domestic premises committed by a first offender of full age where there are no aggravating or mitigating features is a term of 36 months imprisonment: see AG v Lui Kam Chi [1993] 1 HKC 215; HKSAR v Lau Pang [2004] 3 HKLRD 565.

11.The starting point can be adjusted upwards if there are aggravating circumstances such as; (1) the offence is carefully planned and skilfully executed involving the use of heavy instrument or equipment; (2) the offence is committed by two or more people; (3) the offence targets at substantial premises and involves substantial properties; (4) the offender is a professional burglar and not just an opportunist; (5) the offender has previous convictions, particularly previous conviction of similar nature, and (6) the offender commits multiple offences: see HKSAR v Cheng Wai Kai, CACC 338-339/2007.

12.Obviously, the offence was planned as the defendant brought with him a pair of gloves, some surgical masks, two bundles of rope with two metal hooks and a metal folded multi-purpose knife.  There is no evidence before me to suggest otherwise.  The defendant has previous convictions of burglary.  By reason of these aggravating factors, I would therefore adjust the starting point upwards by 3 months.

13.I have carefully considered everything that was said on behalf of the defendant in mitigation.  Economic reasons and/or payments of medical expenses are not reasons for offending.  Apart from his guilty plea, I do not find any other mitigating factor justifying a further reduction of sentence.  Giving full credit to the defendant for his guilty plea, I sentence the defendant to a term of imprisonment of 26 months.