HKSAR v. Kwong To Ming

DCCC 296/2017

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 296 OF 2017

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Reasons for Sentence

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1.The defendant has pleaded guilty to a single charge of domestic premises burglary, which occurred in February of this year in Shek Kip Mei Estate, Sham Shui Po.

2.The facts show this to be, I think, what you describe as a walk-in burglary, the victim living in a public housing estate in Sham Shui Po, in what is described as an old-style flat.  She was inside the premises in the afternoon of 12 February 2017, together with her two daughters, and she saw the defendant in the bedroom of her flat holding two of what were her handbags.  Having seen him, she shouted at him and the defendant ran out into the lobby of the building. 

3.The defendant was eventually subdued nearby and he was in possession of two handbags which belonged to the victim, PW1, and $20 which was contained in one of the handbags.  Handbags were estimated in total valued about $500.

4.Defendant was immediately arrested.  Under caution, he said he committed the offence out of greed.  He had seen the main door and the iron gate were open and went into the flat to take the handbags, and the $20 was inside one of the handbags. 

5.He made a further video recorded interview, made some further, more detailed admissions.  He had seen the iron gate and the main door of the premises unlocked.  When he had entered the premises he had seen one of the daughters sitting in the living room and then he grabbed the handbags straight away.

6.The defendant’s antecedents have also been proved before the court.  He is aged 63, educated till primary school level, unemployed at the time of his arrest.  Last discharge from prison was on 29 September 2014. 

7.The defendant has a number of criminal records, 35 separate appearances in court for a number of offences with quite a large number of burglaries, but dating back to 1980:   convictions of burglary in 1980, 1982, 1987, 1989 and 1993; and then in year 2000 for attempted burglary; then again in 2004 for burglary; finally, in 2010 and 2012 for burglary and attempted burglary.

8.The defendant has been sentenced to imprisonment on a number of occasions. 

9.In the year 2000 he was sentenced to 2½ years’ imprisonment and in 2004, for five separate burglaries, 3 years on each, and it was a total of 5 years eventually, because there was a further burglary which was 2 years consecutive. 

10.Lately, in 2010, he was convicted of burglary and sentenced to 2 years and 4 months’ imprisonment.  I am told that was after plea of guilty. 

11.In 2012 he was convicted of attempted burglary. He pleaded not guilty and was sentenced to 4 years’ imprisonment for that.

12.And then, of relevance today, on 2 December 2015 he was convicted of possession of a dangerous drug and sentenced to 2 months’ imprisonment, suspended for 2 years.  So he admits by his plea of guilty today that he is in fact in breach of that suspended sentence.

13.As far as the mitigation is concerned, the defendant prays in aid his plea of guilty today and asks for leniency.  The offence was committed towards Lunar New Year and he was looking for some way of raising some money quickly.

14.As far as sentence is concerned, there is a guideline sentence for a domestic premises burglary and the starting point for sentence for a person of clear record, after trial, is one of 3 years’ imprisonment.

15.The defendant has pleaded guilty today but he is certainly not a person of clear record, and it is an established principle of law that that is an aggravating factor in offences of burglary. 

16.It is said that there are two aggravating factors:   that the offender, this defendant, is a professional burglar, not just an opportunist; that the offender has previous convictions.

17.I find that in this case those aggravating factors somewhat meld together.  Defendant is an opportunistic kind of burglar - he walks into open premises or unlocked premises and tries to find what is inside - but he clearly is a persistent burglar with a number of convictions, and it is clear that sentencing in the past has not deterred him from committing and continuing to commit these kinds of burglaries, and there is an element of professionalism in the sneak thief way that he commits these burglaries, and I do find that those two factors meld together in his case.

18.Nevertheless, the failure to deter in the past is a serious aggravating factor.

19.As far as mitigating factors is concerned, there is his plea of guilty, for which he should, in the normal course of events, receive a one-third discount.

20.Taking a starting point at 3 years’ imprisonment, then adding on for the aggravating factors in this case, I consider that the aggravating factors should not be more than a further 12 months’ imprisonment. So I would take, in this case, for this defendant, a starting point of 48 months’ imprisonment.

21.After deduction for one-third, that leads to a sentence of 32 months’ imprisonment; that is a reduction of 16 months.

22.There is the suspended sentence.  The defendant is in breach of the suspended sentence.  I consider that it should be activated, but I will activate it in part and what I shall do is activate the sentence, but order that 1 month of that sentence be served consecutively to the existing sentence and the balance concurrently.

23.In total, that leads to a sentence on this occasion of 33 months’ imprisonment.

24.That will be the sentence I will impose.