HKSAR v. Cheung Wing Lap

DCCC 635/2017

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 635 OF 2017

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REASONS FOR SENTENCE

The defendant pleaded guilty to 4 offences of "Burglary". He burgled 4 public housing units situated at 2 housing estates in Tai Po and Fanling respectively.

Summary of Facts

2.The defendant committed all 4 burglaries with the same modus operandi.  The flats he burgled shared one common feature−the metal gate was shut but not locked with the wooden door left open.  The defendant entered each flat when no one appeared to be in the living room.  He then took away valuable properties and left.

3.In Charge 1, on 8 April 2017 the defendant took away a handbag placed on a table in the living room when the resident was in the kitchen.  Subsequently, the handbag was found near the staircase, but the properties particularized in the charge were missing.

4.In Charge 2, on 13 April 2017, the defendant took away a handbag and a jacket from the flat when 2 residents were respectively in the bathroom and bedroom. Subsequently, the handbag and jacket were found 1 floor above the flat, but the $5,000 cash inside the handbag was missing.

5.In Charge 3, on 29 April 2017, the defendant took away a handbag from the bedroom when the resident was in the bathroom.  Subsequently, the handbag was found in the staircase 1 floor above the flat, but the properties particularized in the charge were missing.  The resident's Hong Kong Identity Card was later found in the staircase several floors below the flat.

6.In Charge 4, on 30 April 2017, the defendant entered the flat when 2 residents were respectively in the bedroom and kitchen.  The resident in the bedroom suddenly noticed an unknown male walking past her bedroom and then out of the flat. Since she was not wearing her glasses, she was unable to see the defendant's face.  She relayed the matter to her mother, who then alerted the Police. Upon arrival at the scene, police officers found the defendant outside the staircase of the building and intercepted him for enquiries.  Under caution, he admitted having burgled the flats particularized in Charges 3 and 4.  The 2 residents confirmed that they did lose any properties.

7.In his video recorded interviews, the defendant admitted in details how he burgled the 4 public housing units.

Mitigation & Sentence

8.The defendant is almost 50 and has 11 conviction records, which included 20 burglary-related offences. His last conviction involved 2 "Burglary" offences, for which he was sentenced to a total of 2 years and 2 months' imprisonment in January 2016. He was released from prison in early December 2016. The defendant began his long history of "Burglary" convictions in 1995. Defence solicitor Mr. CHIU informed me that the defendant is a Hong Kong resident but lives in Shenzhen.

9.In mitigation, Mr. CHIU submitted that the defendant committed the present offences because he was unable to find stable employment after being discharged from prison. In the present case, no tools were used and no advance planning was involved. The defendant committed the offences alone and no property damage or personal injuries were caused. Mr. CHIU also submitted that in his video recorded interviews, the defendant admitted the offences in Charges 1 to 4 on his own volition.

10.I disagree with Mr. CHIU that the present 4 offences were opportunistic burglaries. The defendant resided in Shenzhen. His Travel Index Record[1] clearly shows that on the respective dates of Charges 1 to 3, he entered and left Hong Kong on the same day. On the date of Charge 4, he entered Hong Kong and was arrested on the same day. Furthermore, he had no business being at the 2 housing estates. He seized the opportunity to enter the respective buildings when someone opened the door at the main entrance[2]. I draw the irresistible inference that his purpose of entering Hong Kong each time was to burgle.

11.The normal starting point for domestic burglary is 3 years' imprisonment. The defendant has an appalling criminal record, which renders him a "repeated offender". The sentences in the present case must carry a deterrent element. Committing a series of burglaries within a month is also an aggravating factor[3]. In other words, a higher than normal starting point is required.

12.Based on the nature and value of the stolen items, the mode of stealing and the 2 aggravating factors mentioned above, I consider 3.5 years' imprisonment to be the appropriate starting point for each charge. With the guilty plea, the sentence is reduced to 28 months. Apart from this, I see no other mitigating factors which warrant any further reduction. I sentence the defendant to 28 months' imprisonment for each charge.

13.Bearing in mind the totality principle, I consider a global starting point of 5 years to be appropriate for all 4 charges. With the guilty pleas, the overall sentence becomes 40 months.

14.As confirmed by prosecuting counsel Mr. WONG, the evidence against the defendant in the present case came solely from his admissions. I am prepared to grant him an additional discount of 4 months[4], reducing the overall sentence to 36 months. Hence, I order the sentences to run in the following manner :-

(i) 3 months in Charge 2 consecutive to Charge 1;

(ii) 3 months in Charge 3 consecutive to Charges 1 and 2; and

(ii) 2 months in Charge 4 consecutive to Charges 1 to 3.

Thus, arriving at a total prison term of 36 months.

15.The court can only do so much in deterring a repeated offender by way of a heavy penalty. Whilst the sentence must carry a deterrent effect, it cannot go out of proportion. I accept that there are limits in our penal system. If the defendant refuses to reform and to live a law-abiding life, that is his choice, and he will have to face the consequences.