HKSAR v. Wong Po Chung

DCCC 1160/2016

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 1160 OF 2016

-----------------------------------

-----------------------------------

----------------------------

Reasons for Sentence

----------------------------

Charges and facts

1.The Defendant pleads guilty to the burglary of a residential unit (1^st Charge) and the possession of apparatus fit and intended for the inhalation of a dangerous drug (2^nd Charge).

2.At about 7:30 am on 18 October 2016, the occupiers of a 34^th-floor residential unit, Room 3424, in a block in Cheung On Estate, Tsing Yi found their property missing from the living room, namely a wallet containing a HKID card, a student ID card, an Octopus card, an ATM card, and cash HK$150, and a handbag containing a HKID card, a Home Visit Permit, 6 ATM cards, 1 credit card, cash HK$5,500 and RMB¥10,000.

3.They found their kitchen window being open.  The police were informed and found the adjacent flat, Room 3423, under renovation with scaffolding outside.  The key for Room 3423 had been placed at the iron grille by the workers.  CCTV of the corridor captured the Defendant leaving his unit at Room 3116 at 5:09 a.m. the same morning and returning at 6:03 a.m. with something in his hands. 

4.The police arrested him on 24 October 2016.  Under caution, he admitted the burglary by using the key for Room 3423 to open the door and climb through the scaffolding to enter Room 3424 by the kitchen window which was open.  He had spent all the money and discarded the other items. 

5.The police found in his unit a bottle fitted with 2 plastic tubes, which was an apparatus for smoking the drug ICE.  Under caution, he admitted having the apparatus for his own use. 

6.He repeated his admissions to the 2 offences in his subsequent video-recorded interviews. 

Mitigation

7.He is 37 years of age, of F. 1 education level.  He was a decoration worker before arrest.  He has 22 theft convictions (last sentenced to jail in June 2014) and 5 theft-related burglaries (last sentenced to jail in May 2010). 

8.He has a 2-month sentence suspended for 1 year imposed in August 2016, namely only 2 months before our present offences, for assaulting a police officer.  His solicitor, Mr. Chan, asks me to exercise my discretion not to activate it.  

Sentencing considerations

9.A first-time burglar of residential premises can expect 3 years’ imprisonment in the absence of aggravating factors (Attorney General v Lui Kam-chi [1993] 1 HKC 215; HKSAR v Lau Pang [2004] 3 HKLRD 565).

10.Mr. Poon, counsel for the prosecution, has handed up two cases for consideration.  The first one is HKSAR v Wong Ho Kit, Lawrence CACC 479/2000, which indicates that previous similar records for burglary can be a significant aggravating factor in sentencing a burglar.  The other case is R v Law Sing [1996] 4 HKC, which indicates that the possession of drug smoking apparatus can attract a starting point of 3 months’ imprisonment. 

11.Mr. Chan has handed up 3 cases for consideration.  The first one is HKSAR v Hossain MD Emran [2015] HKDC 1591, which applies the 3-year starting point for burglary of residential premises.  The second case is Attorney General v Wu Chi Sing [1989], which shows how a magistrate has exercised her discretion not to activate a suspended sentence where it will be unjust if activated.  Her decision is upheld on appeal.  The last case is HKSAR v Fung Shun Kwai [2000] HKCFI 1889, in which the Court of First Instance affirms the magistrate’s decision as being unjust to activate a suspended sentence for selling counterfeit goods, as first the subsequent offence of possession of dangerous drugs, is of a different nature, and secondly, the suspended period is about to end where the subsequent offence takes place. 

Sentencing this Defendant

12.I take 3 years as the basic starting point for the 1^st Charge. I add 6 months to it for his being a repeat offender for theft and burglary.  I give one-third discount for the plea of guilty.  There are no other mitigating factors.  His sentence is 2 years 4 months. 

13.I take 3 months as the starting point for the 2^nd Charge.  I give one-third discount for the plea of guilty.  There are no other mitigating factors.  His sentence is 2 months. 

14.I do not see anything unjust to activate the suspended sentence for assaulting a police officer.  The full term of 2 months is activated. 

15.However, by totality, I order the sentences for both charges to be served concurrently together with the activated sentence.  The overall sentence is still 2 years 4 months.