HKSAR v. So Chi Kin

DCCC 964/2016

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 964 OF 2016

____________

____________

REASONS FOR SENTENCE

1.So Chi Kin you have pleaded guilty to two charges of burglary of the Lam Tsuen Public Wong Fook Luen Memorial School, contrary to section 11 of the Theft Ordinance[1].

2.Full particulars of the offences are set out in the facts admitted by you today.  In summary on the 25 and 26 August last year you burgled the Lam Tsuen Public Wong Fook Luen Memorial School in the Tai Wo Estate of Tai Po. 

3.On the 25 August you stole a computer and computer bag, valued at $5,800 from the conference room of the school.  You were captured on CCTV entering the school and leaving with the computer bag.  The next day you again entered the school with intent to steal but did not steal anything.

4.You were arrested on 31 August.  Under caution you admitted entering the school on 25 August and stealing the computer, which you sold for about $300.  You also admitted entering the school the next day but did not steal anything.

Mitigation

5.In passing sentence, I have carefully considered everything said on your behalf by Miss Kam, including that you were unemployed at the time and acted out of greediness.  I take into account nothing was stolen in the second burglary.

Starting point

6.The correct starting point for a single burglary of non-domestic premises committed by a first offender of full age where there are no aggravating or mitigating features is 2 years and 6 months imprisonment.

7.I am told that you lived nearby the school and when riding past the school on your bicycle you saw the gate of the school was open and construction work going on.

8.Lower starting points have been taken where the burglary is said to be opportunistic, for example where someone passes by an open door or vacant premises and steals food or items of little value[2].

9.You were captured on CCTV wandering around the school no doubt looking for valuable items you could quickly resell.  You stole a computer valued at $5,800, which you sold for about $300.  In the circumstances I am satisfied the starting point is 2 years and 6 months imprisonment[3].

Aggravating feature

10.You have appeared in court on 26 previous occasions amassing a total of 29 convictions, 18 for dishonesty of which 6 are for burglary.  I am satisfied you are properly to be regarded as a persistent offender.  I enhance the starting point for each offence by 3 months to 2 years and 9 months imprisonment. 

11.Giving you full credit for your pleas of guilty reduces the sentence on each charge to 1 year and 10 months imprisonment.

Confession

12.Mr Choi confirms that without your confession there was no other evidence for charge 2.  In HKSAR v Ma Ming[4] the Court of Appeal held that the fact that a frank confession provides the only evidence which supports the charge did not entitle the defendant to a further discount over and above the one-third discount. 

13.The Court of Appeal in HKSAR v Ngo Van Nam[5] reaffirmed the position that a judge was not obliged to give a discount over and above the one-third discount explaining that the mitigating factor of a confession was subsumed within the one-third discount.   

Totality

14.The court in Ma Ming did however say that when considering the totality of the sentence a court, in exercising its discretion, can take into account the fact that the frank confession of a defendant provides the only evidence to support the charge. 

15.Taking into account all the circumstances of the two burglaries including nothing was stolen in the second burglary and your frank confession, I am satisfied that a total sentence of 2 years and 6 months imprisonment is appropriate.

16.On 17 October last year you were sentenced in the Fanling Magistracy to 2 months imprisonment for theft of a bicycle[6]. I have read the case papers and note that you stole the bicycle on 8 August, the same month as you committed the burglaries.  I am satisfied that had you been sentenced for the burglaries and the theft at the same time a wholly consecutive sentence would have been imposed, the theft and the burglaries being entirely separate and distinct offences. 

Sentence

17.You are convicted and sentenced as follows:

CHARGE 1 – 1 YEAR AND 10 MONTHS IMPRISONMENT; AND

CHARGE 2 – 1 YEAR AND 10 MONTHS IMPRISONMENT WITH 8 MONTHS CONSECUTIVE AND 14 MONTHS CONCURRENT TO CHARGE 1.

18.The total sentence to be served by you is 2 years and 6 months imprisonment, which I am satisfied properly reflects your criminality on the two charges.

[1] Cap 210.

[2] See for example HKSAR v Cheung To Ming [2006] 2 HKLRD 260 and HKSAR v Chau Man Ying CACC 439/2011.

[3] See HKSAR v Hai Chung Po CACC 115/2013.

[4] [2013] 1 HKLRD 813 at §32.

[5] [2016] 5 HKLRD 1 at §41.

[6] FLCC 3693/2016.