HKSAR v. Siu Wai Kin

DCCC 658/2016

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 658 OF 2016

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REASONS FOR SENTENCE

1.Siu Wai Kin you have pleaded guilty to one charge of burglary, contrary to section 11 of the Theft Ordinance[1] (charge 1); and two charges of driving an unlicensed vehicle, contrary to section 52 of the Road Traffic Ordinance[2] (charges 2 & 4). Two charges of using a motor vehicle without third party insurance, contrary to section 4 of the Motor Vehicles Insurance (Third Party Risks) Ordinance[3] (charges 3 & 5) were dismissed upon the prosecution offering no evidence.

2.Full particulars of the offences are set out in the facts admitted by you on 25 January.  In summary in the afternoon of 18 May last year together with another person you burgled the home of one of your neighbours.  You forced open the window on the second floor of a three storey village house at No. 140, Fanling Wai Village.  At the time you were living in the village at No. 160A.

3.You ransacked the bedroom on the second floor from where you stole two rings and two watches.  You stole another ring from a bedroom on the first floor.  The total value of the rings and watches was $27,000. 

4.Your involvement in the burglary was discovered when the police viewed the CCTV cameras installed in the village.  Images captured you and another male, in the afternoon of 18 May, wandering in the vicinity of No. 140.  You were also seen driving private car TV 9162 in the village the same afternoon and the following day. 

5.On 20 May the police searched the private car TV 9162, which was parked outside the village office.  The police found your identity card and driving licence inside the car.  Under the carpet in front of the left rear passenger seat the police found one of the rings stolen in the burglary.  You were arrested the same day. Police enquiries revealed that the vehicle licence had expired on 7 January 2016 and had not been renewed.

Mitigation

6.In passing sentence, I have carefully considered everything said on your behalf by Ms Tsang together with your letter of mitigation.  I take into account that you are determined to change your life and show your young son you can be a good father.   Your determination to change is shown by your recent support for the organ donation registration scheme.

Burglary

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

Aggravating features

8.You have appeared in court on 13 occasions amassing a total of 34 convictions, 13 of which are for offences of dishonesty with one for burglary.  Most of your offences of dishonesty, however, were committed when you were a teenager. 

9.The burglary was committed in 1996 when you were 14.  In 1999 you were sentenced to 3 years and 4 months imprisonment for an offence of robbery.  After serving the sentence you have only been convicted of one further offence of dishonesty in 2011 when you received a suspended sentence for an offence of blackmail. 

10.Although you have continued to appear in court and can be regarded as a persistent offender, having only been convicted of one offence of dishonesty in the last 15 years I do not increase the starting point by reason of your previous offending. 

11.The CCTV shows you together with another man.  I am told you entered the flat while the other man kept watch.  You also gave this man the stolen goods.  This man has apparently disappeared and therefore you are unable to recover the stolen property. 

12.The commission of the offence by two persons is an aggravating feature[4].  I enhance the starting point by 3 months to 3 years and 3 months imprisonment. Giving you full credit for your plea of guilty you are convicted and sentenced to 2 years and 2 months imprisonment.

Driving an unlicensed vehicle

13.I am told that due to a shortage of money you were unable to afford the renewal of the motor vehicle licence and therefore took the chance to drive the vehicle without a valid licence.  This is the fourth and fifth time you have committed this offence.

14.I am satisfied a short prison sentence is appropriate.  I am satisfied a sentence of 21 days imprisonment is appropriate on each charge.  Giving you full credit for your pleas of guilty you are convicted and sentenced to 14 days imprisonment on each charge. 

Totality

15.The two offences of driving an unlicensed vehicle occurring on successive days, I am satisfied concurrent sentences are appropriate.   Burglary and driving an unlicensed vehicle are, however, separate and distinct offences for which consecutive sentences are appropriate.  I am satisfied a wholly consecutive sentence is appropriate making a total sentence to be served by you of 2 years and 2 months and 14 days, which I am satisfied properly reflects your criminal culpability on the three charges.

Sentence

16.In summary you are convicted and sentenced as follows:

CHARGE 1 – 2 YEARS AND 2 MONTHS IMPRISONMENT;

CHARGES 2 & 4 – 14 DAYS IMPRISONMENT CONCURRENT ON EACH CHARGE AND CONSECUTIVE TO CHARGE 1.

[1] Cap 210.

[2] Cap 374.

[3] Cap 272.

[4] See HKSAR v Cheng Wai Kai CACC 338/2007