HKSAR v. Ko Chi Wai

DCCC 50/2017

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 50 OF 2017

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Reasons for Sentence

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1.The defendant has pleaded guilty to one charge of burglary.

2.The facts of this case are straightforward.  On CCTV footage, the defendant is seen, at about 3 am on 17 November 2016, entering a cooked food store in Fu Shan Estate, where the defendant himself lives.  He is seen, on CCTV, prising open a locked drawer at the cashier counter.  The defendant stole $2,900 from this drawer.

3.This cooked food store, like many in such estates, had no actual walls, gates or doors.  It had thick plastic curtains that were rolled down at the end of the day or close of business.  This restaurant closed at 6 o’clock every day.  Once these curtains are rolled down, one had to either physically climb between them or under them to get in.

4.The defendant knew full well he was trespassing when he entered into the restaurant behind the curtains when the curtains were down.

5.Once the CCTV footage was viewed, the defendant was quickly identified.  In fact, he was arrested the very next day.  Under caution, he made a full admission and co‑operated with the police.  He admitted stealing the money out of greed.  When he entered the restaurant, he found the drawer was locked.  He fetched a screwdriver to prise it open.

6.The cash was spent by the time the police arrested him the next day.  There is no restitution in this case.

7.The defendant’s best mitigation today is his plea of guilty.

8.The defendant is not a man with a clear record. He has 19 convictions obtained over 14 court appearances.  10 of his convictions relate to offences of dishonesty.  His last conviction was in April 2016, where, for burglary and theft offences, he was sentenced by me to 1 year and 2 months’ imprisonment.  In that case, he similarly burgled from cooked food stores in the same estate.  In that case, he stole some softdrinks and noodles as well as a can of paint.

9.The mitigation advanced on that occasion was very similar to the mitigation advanced today.  He lives with his mother in that estate.  He was married, but is now divorced, and the custody of his 10-year-old daughter has gone to his ex‑wife.  Today I am told that his ex-wife has informed the defendant that at the moment, their daughter is living under Social Welfare Department care in a children’s home.

10.The defendant is a 46-year-old man who has very little employment history.  This may be because he is an alcoholic, and has been for years; at least since 2004.  I have a medical report from East Kowloon Psychiatric Centre dated April 2017.  It describes his history with alcoholism and describes medication he is on.  In fact, on the last occasion he appeared in court before me, he told me he was then determined to quit alcohol.  Today he repeats that same promise in a letter.  I do not have much faith in this empty promise, but there is always hope he will do it for the sake of his child.  This child sadly has to live in a children’s home because neither of her parents are either responsible enough or have the ability to look after her.  I have also been told the defendant has, since he was remanded for this burglary, signed up to be an organ donor, a mitigating factor that I am hearing on quite a frequent basis now, and I have to be frank - it does not carry any weight as far as the sentencing exercise is concerned.

11.The starting point normally for a burglary of non-domestic premises is 2½ years’ imprisonment if there are no mitigating or aggravating factors.  Here, despite your poor record, I find none of either persuasion.

12.I have taken into account the facts of this burglary, the loss suffered by the victim, as well as mitigation put forward.

13.I will take a starting point of 2 years and 6 months for Charge 2.

14.You pleaded guilty and are entitled to a discount of one‑third.  Once that discount is applied, the sentence will be one of 1 year and 8 months’ imprisonment.

COURT: Do you understand that sentence?

DEFENDANT: Understood.