HKSAR v. Wong King Wah

DCCC 33/1996

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 33 OF 1996

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REASONS FOR SENTENCE

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1.In these proceedings, the defendant, Wong King Wah, faced a total of two charges, namely,

(1) Burglary, contrary to section 11(1)(b) and (4) of the Theft Ordinance, Cap 210;

(2) Failing to Surrender to Custody without Reasonable Cause, contrary to section 9L(1) and (3) of the Criminal Procedure Ordinance, Cap 221.

2.He is convicted of both charges upon his plea and admission of facts.

Facts for Charge 1

3.In the morning hours on 25 October 1995, the defendant, armed with a hired car, some gloves, screwdrivers, a pair of pincers and an accomplice, went to Tak Shun Medicine Shop at Ground Floor, No 1088 Canton Road, Kowloon.  There he cut the bolt of the metal gate and forced it open, took away four glass bottles containing bird’s nests and tried to get away.

4.The defendant’s action activated the alarm system set up by the owner of the shop.  He was alerted and attended the scene and then made a report to the police. 

5.Sometime at around 4 am on the same day, the police officers on patrol duty saw the defendant removing a bag of what turned out to be bird’s nest from a motor vehicle somewhere near the shop along Canton Road.  The police officers successfully apprehended the defendant while his accomplice made good his escape.  

6.The total value of the bird’s nest was $100,000. The owner did not suffer any loss as all had been recovered.

Facts for Charge 2

7.The matter was eventually brought to the District Court on 30 January 1996.  The case has set down for trial starting from 3 June 1996.  The defendant did not turn up.  In fact, he had failed to report to the police station as required as part of his bail conditions since 27 May 1996.  An arrest warrant was issued. 

8.The defendant was arrested again on 23 February 2017 when he returned to Hong Kong.  Under caution, he explained that he left Hong Kong illegally through Chung Ying Street and had lived in China since.

Sentencing Consideration

9.This is a burglary of a non-domestic premises. The prosecution and the defence took no issue as to the proper starting point of a normal case of this kind two and a half years. 

10.In this case, there are aggravating factors, namely,

(i) the defendant had planned the heist in advance; he hired a car, he had an accomplice and brought with him equipment to break into the medicine shop.

(ii) his act of theft was target-specific. Of the valuable goods inside that shop, he took away the four glass jars containing bird’s nest.

11.From the facts, I conclude that the defendant had in fact targeted the particular merchandise in the shop.

12.Having reviewed all the factors of the case, I consider that I should adopt a higher starting point of 36 months for Charge 1 in order to reflect the gravity of the case.

13.As for Charge 2, the maximum sentence is 12 months.  Obviously, the defendant was granted bail on his promise to come back to court.  In so doing, he had been in breach of the promise, and this is, as thus put by his counsel, a blatant disrespect for the court.  In fact, the defendant’s behaviour could put the bail system into jeopardy.

14.Having considered the matter as a whole, I will adopt 3 months as the starting point.

15.Since the matters are separate, I would order that they run consecutively.

Mitigations

16.I next turn to consider the mitigating factors furnished by his background and the mitigation.  At the time of the offence, the defendant was a 32-year-old man, not a young man by any standard.  He had by then on six occasions been convicted of nine different counts.  He can be hardly considered young, and he is not a first offender.  There is nothing in his age or criminal background which warrant extra leniency. 

17.Defence counsel also furnished some background about him.  The court came to know that having reached Form 1, he left school and helped out in the family business as an air-conditioner apprentice.  He stayed on that job for a few years before he started his series of transgression.  After his escape into the mainland, he was involved in a rather serious case of dangerous drugs, as a result he had been sent to prison for 17 years.  He came back to Hong Kong after serving his term of imprisonment and he, as he said, wanted to put the unfinished business at rest.

18.None of these matters are relevant consideration for reduction of sentences.  The only valid mitigation is the fact that he pleaded guilty.   In accordance with the usual practice, he will be accorded with a one-third discount.  So the total of 39 months is reduced to 26 months.

19.In passing this sentence, I have taken into consideration the fact that this matter has been weighing on him since 1995. Yet the defendant could not blame anyone else for this delay.  He chose to leave the jurisdiction, and in the mainland, he chose to transgress the law again.  None of this could be considered in his favour.

20.The defendant is hereby sentenced to 26 months’ imprisonment.