HKSAR v. Cheung Kin Man

DCCC 729/2016

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 729 OF 2016

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REASONS FOR SENTENCE

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1.The defendant, Cheung Kin-man, pleaded guilty to a charge of attempted burglary of domestic premises, contrary to section 11(1)(a) and (4) of the Theft Ordinance, Cap 210, and section 159G of the Crimes Ordinance, Cap 200.

2.The facts to which the defendant admitted are as follows.  Mr Pang Yu-on, aged 55, resides at a village house situated on the 1st Floor, 6J Fan Leng Wai North, Jockey Club Road.  On 24 March he heard noise coming from the ground floor.  A suspicious male was seen interfering with the window of the ground floor.  Mr Pang went down to have a check.  He saw a suspicious male walk to his silver Mercedes Benz with registration mark TU-9536, “the vehicle”.  The male then left the scene.

3.The tenants of the ground floor stated that the window as well as the curtain were damaged, and the repairs cost HK$500.  However, no property was stolen.

4.Upon reviewing the CCTV, a male with hoodie was captured getting off the vehicle and walking towards the flat in question.  That male removed his hood for about two seconds.  He then noticed the CCTV camera and immediately covered his face and put the hoodie back on.

5.The quality of the CCTV footage is relatively high, and the facial features of that male were captured.  He then opened the window of the flat and looked into the flat with a torch.  He also checked the front door with the torch.  The whole process lasted for eight minutes.

6.Based on the registration mark of the vehicle, it was revealed that the defendant was the registered owner of the vehicle.

7.Having reviewed both the CCTV footage and the video‑recorded interview, the facial features of the defendant highly resemble the suspect; that is, the defendant.

8.The defendant was arrested on 14 June 2016, and I have looked at the photo albums taken at the scene.

9.The defendant’s first criminal conviction dated back to 1992, when he was aged 18. His criminal record tells us that he was brought to court on 16 occasions, with a total of 50 previous convictions, 44 of which relate to dishonesty offences, for example, robbery, attempted burglary, burglary, and going equipped for stealing.  To be precise, he has 19 previous convictions for attempted burglary or burglary between 1996, when he was 22, and 2012, when he was 38.

Mitigation

10.The defendant is aged 42.  He has a fiancée, and a son aged 3 months old.  The fiancée has three children in her previous marriage.  The defendant has promised to her to raise the four children.  The defendant was then in financial difficulties.  After committing the present offence, he worked in a construction site.  A letter written by the fiancée, Madam Ho, was submitted to court.  In gist, she said that the defendant committed the present offence in order to earn some quick money for family use.

11.Mr Ho asked this court to adopt the normal starting point for sentence.  That is, 3 years’ imprisonment.  He submitted that there was no property stolen, no equipment was used, and only minor damage was caused to the window frame of the premises in question.  The defendant is willing to pay HK$500 as compensation for the tenants of the premises in question.

Reasons

12.In passing sentence, I have carefully considered everything said on behalf of the defendant by Mr Ho and supplemented by the defendant.  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.  See AG v Lui Kam Chu [1993] HKC 215 and AG v Lo Ching Fai [1996] 2 HKCLR 19.

13.I adopt 3 years’ imprisonment, or 36 months’ imprisonment, as the starting point for sentence.

14.I note the defendant has an appalling criminal record.  Previous sentences have clearly had no deterrent effect on the defendant, who continued to commit similar offences.  This court is therefore entitled to adopt a higher starting point for sentence for the present offence.

15.I shall increase the starting point for sentence to 39 months’ imprisonment.

16.According to the record, the defendant was brought to attend a Plea Day hearing in the District Court on 2 September last year.  His case was called on before 11 am on that day.  In that hearing he indicated his plea of not guilty. The case was then fixed for trial.  Mr Ho informed this court that the judgment of HKSAR v Ngo Van Nam CACC 418/2014 was delivered in the afternoon on 2 September last year.  As such, the revised discount of sentence for pleas of guilty should not apply in this case.  Mr Hemmings, for the prosecution, informed this court that the photographs and the CCTV, being the most implicating evidence against the defendant, were served on him after 2 September last year.

17.Having heard both parties, I consider that the principles of the revised discount of sentence enunciated in the said judgment do not apply.

18.Are there any mitigating factors in this case?  The tenants of the premises in question were not at home at the material time.  It was not a mitigating factor.  Also, family hardship is not a mitigating factor.  The only mitigating factor is the guilty plea, and the defendant is therefore entitled to a full one-third discount of sentence.

19.He is sentenced to 26 months’ imprisonment.