HKSAR v. Chong Kin Shing, Joe

DCCC 374/2017

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 374 OF 2017

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REASONS FOR SENTENCE

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1.The defendant pleaded guilty to three charges: one charge of theft and two charges of burglary.

SUMMARY OF FACTS

Charge 1: Theft

2.On 23 April 2016, at about 8:45 pm, PW1 left her bag on a corridor in a campus building in PolyU.  Upon returning from washroom, she found mobile phone ($5,000) inside the bag had gone missing.

Charge 2: Burglary

3.At about 8 am on 26 April 2016, PW2 left a mobile phone on a table inside a staffroom of a supermarket.  She left the staffroom with the door half open.  45 minutes later, she returned to the staffroom and the phone had gone.

Charge 3: Burglary

4.At about 11:30 am on 20 May 2016, PW3 placed his mobile phone ($3,000) on a table in his office in the PolyU campus.  PW3 returned to his office and found the phone was missing.  His office door was closed but was not locked.

5.Under caution, the defendant confessed that the stolen properties were unattended and he had stolen PW1 and 2’s phones.  As to Charge 3, he went to PolyU even though he was not a student there.  All the phones he had stolen from PW1, 2 and 3 were sold for $350, $400 and $1,000 respectively.  He spent them on food already.

CRIMINAL RECORD

6.He had 41 convictions for 26 appearances in court.  19 offences related to theft and 10 charges of burglary in 2004, 2007, 2011 and 2016.

MITIGATION

7.He is 40 years old.  He has separated from his wife for some 10 years.  He was unemployed at that time of the offence.  He used to be a casual construction site worker, earned about $500 per day.  Since August 2015, he started to receive CSSA for $4,500 per month to support his living.  He is currently serving a sentence of 20 months for a charge of burglary in DCCC 784/2016 and is due to be released this Saturday.

8.The defence ask this Court to take into account that if the four charges were heard together, the sentencing court would have taken into account of the totality principle, that part of the sentence would have been served consecutively. The defence also said that there was a delay in bringing the defendant to court.

SENTENCE

9.In respect of the delay, the prosecution said the defendant was arrested by the Mongkok team for the present offence while DCCC 784/2016 was arrested by Sham Shui Po team.  Both arrests took place in July 2016.  The defendant was remanded since his arrest in DCCC 784/2016 and was taken to the court for sentence in last October 2016. 

10.The Mongkok team did not know the defendant was being sentenced.  They did not communicate with the Sham Shui Po team.  Therefore, the defendant was not charged until this year.

11.I first deal with the sentence of the two burglary charges.  The usual starting point for a non-domestic burglary is two and a half years.  However, there are circumstances that the court can adopt a lower starting point as stated in the judgment of HKSAR v Sim Ka Wing CACC 450/2000 that:

“The conventional starting point can be lowered in the case of opportunistic burglary, akin perhaps to the sneak thief who walks into an open office to steal whatever he can find.”

12.In respect of the 2nd charge, the door of the staffroom was left open , when the defendant walked past, he had an opportunity to see inside the room that the phone was left on the table unattended.  For this reason, I adopt a starting point of 24 months and reduce the sentence to 16 months. 

13.However, Charge 3 was different.  The Summary of Facts showed that the defendant tried to open the door of the rooms one by one in the same corridor until he reached PW3’s office which was unlocked.  It was an intended move by the defendant.  Each time, he looked for telephones because they had a high resale value.  But that caused a great deal of inconvenience to the victims concerned.  Nowadays, mobile phones are almost an essential personal item for most Hong Kong people.  They store a lot of personal information into the phones.

14.There is no other mitigating factor to justify to take a lower starting point.  I therefore adopt a starting point of 2 and a half years, reduce to 20 months because of his guilty plea.

15.As to Charge 1, the defendant walked into PolyU’s campus building. Although it was for the students, the corridor was accessible freely by the public.  He took away PW1’s phone when the careless victim did not keep her bag in a safe place.  I am satisfied that a starting point of 12 months was appropriate, reduced to 8 months because of his guilty plea.

16.I take into account of the principle of totality.  Charge 1: 8 months, 4 months to be served consecutively to Charge 2; Charge 2: 16 months; Charge 3: 20 months, 10 months to be served consecutive to Charge 2.  The total sentence for the present case is 30 months.

17.As to the point advanced by the defence that if the four charges were to be heard together, the defendant would have the benefit of receiving a lesser sentence rather than just serving an isolated sentence of 20 months in DCCC 784/2016, in essence, by sentencing him in two different occasions, he serves a longer sentence.

18.In the present offence, the three offences took place in April and May 2016.  Same as DCC 784/2016, it occurred on 12 April 2016.  I agree with the defence that if the four charges were sentenced together, he would not face two separate sentences, a sentence of 20 months in DCCC 784/2016 and 30 months in the present case.  Had the four charges been heard together, this court would consider to order 10 months to be served consecutively in DCCC 784/2016. 

19.To achieve fairness of passing an appropriate sentence, I order a further deduction of 10 months.  This also serves the purpose to address the issue of delay.  That arrives at a final sentence of 20 months, to be run consecutively to his exiting term of imprisonment.