HKSAR v. Chuk Kwok Fung

DCCC 850/2017

[2018] HKDC 631

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 850 OF 2017

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REASONS FOR SENTENCE

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1.Defendant Chuk Kwok Fung is charged with two charges namely, one charge of Attempted burglary contrary to the Theft Ordinance, Cap 210, and the Crimes Ordinance, Cap 200 (Charge 1), and one charge of Possession of false number plates contrary to section 111(1)(b) of the Road Traffic Ordinance, Cap 374 (Charge 2).

2.Mr Chuk pleaded guilty to Charge 1 and agreed the facts; in return the prosecution asked that Charge 2 be left on court file.  I therefore ordered that Charge 2 be left on court file not to be re-opened without the leave of this court or the Court of Appeal.

3.The particulars of offence of Charge 1 are that Chuk Kwok Fung, on 5 March 2017, in Hong Kong, attempted to enter as a trespasser part of a building known as “Kwok Wah Ginseng and Sea Product Co”, Ground Floor, No 53 San Shing Avenue, Sheung Shui, New Territories, with intent to steal therein.

Admitted Facts

4.The facts agreed by Mr Chuk may be summarized as follows.

5.On 5 March 2017, at about 4 am, at outside the subject shop, PW1 witnessed a male (WP later known as the defendant Mr Chuk) squatting down outside the shop.  WP was wearing a blue cap, a surgical mask and a dark jacket.

6.PW1 also heard metal-breaking sound.  It appeared to PW1 that WP was tampering with the roller shutter lock(s) of the shop with something like a hydraulic cutter.

7.Later, WP walked away with the tools and boarded a private car nearby.  Case was reported.

8.Whilst waiting for the police to arrive, PW1 saw a blue BMW private car with registration number SB3XXX drive past the shop slowly; on board were a male driver wearing a blue cap and a male passenger.

9.Police later attended the scene and seized 3 pieces of iron bar from a damaged lock thereat.

10.The owner of the shop returned and found two metal bars that were used to lock down the rolling shutter broken with the cost of repair being at about $1,000.

11.CCTV installed in the vicinity recorded the following footage.  At about 3:26 am, a blue BMW with registration number SB3587 stopped at the road opposite to the shop.  WP, who was a passenger, got off and walked towards the shop.  He later returned and the car left.  At 3:55 am, the car returned.  WP got off and again walked towards the shop.  He later returned and the car left again at 3:59 am.  At 4:14 am, the car drove past the shop which passage was witnessed by PW1 while waiting for the police.

12.Police investigation led to Mr Chuk.  In the trunk of a car registered under the name of Mr Chuk was found a basket containing a pair of registration plates bearing number SB3587 with adhesive tapes at the back, one hydraulic cutter, one crowbar, three pairs of pliers, three screwdrivers, a pair of black plastic gloves and two rolls of double-sided adhesive tapes.  One letter opener and a pair of pliers were found in the compartment of the off-side front door of the same car.

13.Mr Chuk was arrested and under caution, he admitted that he had used the above tools to try to break into a dried seafood shop in San Shing Avenue at an earlier time but in vain.

14.Scientific Evidence Officer was of the opinion that the registration plates bearing number SB3587 could be stuck to the front and rear number plate housings of another private car (a BMW) registered under the name of Mr Chuk.

15.Forensic Scientist was of the opinion that the cut ends of the three pieces of iron bar seized at the scene had been inflicted by the hydraulic cutter found.

Criminal record

16.The agreed criminal record shows that Mr Chuk has 22 previous convictions accumulated through 16 court appearances.  Significantly, he has 4 burglary convictions in 2011-2012.  He was last sentenced in July 2015 to a term of 8 months’ imprisonment for signing a false notice of marriage with intent to procure a marriage.

Antecedents

17.The antecedents statement shows that Mr Chuk is aged 39 (38 at the time of the offence). Contrary to what is stated in the statement, Defence says that Mr Chuk was born in the Mainland and came to Hong Kong when he was 10 years old.

18.The antecedents statement continues to state that Mr Chuk received education up to Primary 6. Since then he worked as a decoration worker and a construction worker; that Mr Chuk was unemployed at the time of the arrest.  Mr Chuk also claimed to be a drug addict.  Mr Chuk claimed to be single.  He has a father (88) and a mother (75), one elder brother (45) and one younger brother (35).  He resided in Fanling.

Mitigation

19.Mr David Iu of counsel assigned by the Director of Legal Aid mitigated on behalf of Mr Chuk.

20.The following is a summary of the mitigation submissions.

21.When he was a part-time decoration/construction worker, Mr Chuk earned $10,000 each month from which $7,000-8,000 was contributed towards his family.

22.About 3 years ago, he came to know his present co-habitant (37), present in court, who works as a cashier in a dispensary earning $10,000 odd a month.  They and the two daughters (aged 12 and 6) of the co-habitant lived together in Fanling.

23.Mr Chuk senior has stage 4 cancer and could not come to court to support Mr Chuk.

24.Mr Chuk’s younger brother owns a decoration company and promises to employ Mr Chuk after his release from prison.

25.It was submitted that Mr Chuk committed the present offence due to financial difficulties; that he committed the previous burglary offences for the same reason.  It was submitted that he decided to quit committing offences after having a healthy family in 2015.

26.Mr Iu asks for a lenient sentence so that Mr Chuk could be released soon to see more of his father and to take care of the two young step-daughters.

27.Mr Iu submitted 4 mitigation letters (in Chinese) written respectively by Mr Chuk’s two step-daughters, his co-habitant and his younger brother.

Sentence

28.I have considered the mitigation submissions made by Mr David Iu, and the contents of the mitigation letters which generally ask for a lenient sentence so that Mr Chuk could turn a new leaf earlier.

29.I have viewed the photographs submitted by the prosecution.

30.Apart from the early indication of plea which Mr Chuk has materialized, there are no other mitigating factors which could earn him any further discounts in sentence.

31.The conventional sentence for burglary of non-domestic premises without aggravating or mitigating features is 2 ½ years’ imprisonment (see Attorney General v Lui Kam Chi [1993] 1 HKC 215, and HKSAR v Sim Ka Wing, CACC 450/2000).

32.In terms of sentence, there should be no difference for an attempted burglary (see HKSAR v Mohammad Farooq, CACC 406/2013).

33.Although the facts revealed a possible unknown accomplice, the prosecution have framed the charge as involving Mr Chuk only.  As a result, I shall treat Mr Chuk as a lone attempting burglar.

34.I note the previous records of burglary offences that Mr Chuk has managed to accumulate for himself.  On the principle stated in HKSAR v Chan Pui Chi [1999] 2 HKLRD 830, I could have enhanced the starting point but in view of the fact that those previous convictions were some 6-7 years ago, I will exercise my discretion not to increase the sentence.

35.In the result, I adopt a starting point of 2 years 6 months in the case of Mr Chuk.

(Mr Chuk, please stand)

36.Giving Mr Chuk the usual 1/3 discount, (I order that) Mr Chuk shall go to prison for 20 months.