HKSAR v. Ng Lim Ching

DCCC 994/2016

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 994 OF 2016

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Reasons for Sentence

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Charges and facts

1.The Defendant pleads guilty to 3 charges of burglary in various domestic units in Ming Wah Dai Ha, A Kung Ngam Road, Shau Kei Wan which took place within 26 days (Charges 1 – 3) and 1 charge for resisting a police officer in the execution of his duty when being approached by the police for the last burglary (Charge 4).

2.Charge 1 relates to the first burglary.  At night time on 1 August 2016, the occupant LOONG went to bed after checking that the metal gate of her unit was closed (though not locked).  The wooden door was left open.  

3.The next morning, she found things had been tampered with.  She lost CAD$1,000 cash, $10,500 (HK$, same as hereinafter) cash, 10 supermarket coupons in the sum of $750 and some photos from the drawer inside her room.  A report was made to the police.  The police later recovered her coupons and her photos at the staircase outside her unit. 

4.Charge 2 relates to the second burglary.  At night time on 13 August 2016, the CAIs family went to bed after checking that the metal gate of the unit was closed (though not locked).  The wooden door was left ajar. 

5.The next morning, Mrs. Cai found some property missing from the unit, i.e., $250 cash and an Octopus Card with remaining value of about $100 from a handbag, and a black bag which contained $20,000 cash, various personal identity documents, and some photos.  Mr. Cai had $3,000 cash and two Octopus Cards missing from the unit.  A report was made to the police.  The police found all Mrs. CAI’s lost property, except her cash and her Octopus Card, from a metal box outside a unit on another floor. 

6.Charge 3 relates to the third burglary.  At night time on 27 August 2016, the CHANs family went to bed after checking that the metal gate of their unit had been secured.  The wooden door was open. 

7.In the early hours on 28 August 2016, police officers were on patrol inside the building when they saw the Defendant closing the metal gate of CHANs’ unit.  To fend off their interception, the Defendant pushed the left shoulder of one of them.  He was immediately subdued and searched.  He was found with a torch of his own and CHANs’ 5 mobile phones missing from the unit.  In the unit were signs of ransacking and drawers being opened.  After arrest for burglary and under caution, he admitted the theft of the 5 mobile phones from the unit.   

8.In the subsequent records of interview under caution, he admitted entry into the 3 units under Charges 1 – 3 and that he had brought the torch along to help him steal if there was insufficient lighting. 

Mitigation

9.The Defendant is aged 38, of primary education level.  At the time of the arrest, he was unemployed.  He had 20 convictions for burglary, the last one sentenced in 2014, and 3 convictions for theft, the last sentenced in 2013.  He had 1 conviction for assaulting a police officer, sentenced in 2013, and 1 conviction for resisting a police officer in execution of duty, sentenced in 2014.  

10.Mr. Lee submits that the Defendant had not used any tools or caused alarm to the occupants.  However, he accepts that the Defendant’s recidivism for burglary is an aggravating factor in the sentence today. 

Sentencing guidelines

11.The starting point is 3 years for burglary of domestic premises for a first offender of full age in the absence of aggravating factors (R v Chan Yui Man CACC 36/1988). 

12.There are no sentencing guidelines for resisting arrest a police officer. 

13.Mr. Lee submits 2 cases for my reference.  The first one is HKSAR v Cheng Wai Kai CACC 338/2007 where the defendant burgled 3 adjacent commercial units on a single occasion.  He broke open the common wall and stole $130,000 worth of goods from the third unit.  Four months later, he broke into an empty unit to attempt to enter an adjacent watch shop.  The shop owner was alerted, leading to his arrest.  The overall starting point of 5 years, though said to be on the high side, was approved by the Court of Appeal. 

14.In HKSAR v Hui Yee-lung CACC 284/2009, the defendant was sentenced for 3 burglaries committed within 1 month at the universities and 1 charge of going equipped for stealing.  He had 25 records for burglary and 10 others for offences of dishonesty.  The Court of Appeal reduced the overall starting point from 6 years to 5 years. 

Sentencing the Defendant

15.I take 3 years as the initial starting point for each of Charges 1 - 3.  I add 9 months to it due to his recidivism for burglary.  One-third off for the plea of guilty, the sentence is 2 years and 6 months.  There are no other mitigating factors. 

16.The starting point for resisting, Charge 4, shall be 3 weeks, to be reduced by one-third for his plea of guilty.  The sentence is 2 weeks.  

17.The 3 burglaries did not form a single transaction.  They were spaced out within 4 weeks.  The sentences shall be consecutive.  However, by totality, I make the following adjustment:

(1) Charge 1, 2 years and 6 months;

(2) Charge 2, 4 months of sentence consecutive to other charges;

(3) Charge 3, 4 months of sentence consecutive to other charges;

(4) Charge 4, 2 weeks all consecutive to other charges.

18.The overall sentence is 3 years, 2 months, and 2 weeks.