HKSAR v. Pham Van Hung

DCCC 629/2018

[2018] HKDC 1578

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 629 OF 2018

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Reasons for Sentence

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Charge and facts

1.The Defendant pleads guilty to a charge of burglary of a residential unit. 

2.PW1 lived with his wife in a sub-divided unit, ie Room D, Flat No. 10, 1^st Floor of a residential building at Tong Mi Road, Mong Kok, Kowloon.  At all material times, Room D was secured by a main wooden door.  Flat No. 10 was secured by a metal grille and a wooden door.   

3.At about 11 a.m. on 30/5/2017, PW1’s wife left Room D and Flat 10 after securing the respective internal locks and additional padlocks. 

4.At about 3.30 p.m. PW2, a security guard of the building, noticed that the metal grille and the wooden door of Flat 10 were open.  The lock of the main wooden door of Room D was also broken.  There were bloodstains and signs of ransacking inside Room D.  He reported the case to the police.  PW1 was informed of the incident and returned to inspect.  The key bolt of the main wooden door was broken.  The additional padlock was removed and destroyed.  Some items had been moved inside.  A safe valued at HK$1,000 originally secured to the wardrobe of the bedroom by a metal chain had gone missing together with the property inside the safe, ie HK$50,000, Renminbi ¥2,000 and some jewelry items valued at about HK$50,000. 

5.Bloodstains were found on a spanner, a fragment of paper, a plastic sheet and a calendar inside the living room.  DNA examination matched them with the Defendant’s.

6.CCTV camera of the building captured the Defendant entering the building at 3.06 p.m.  He left with a bulky bag at 4.07 p.m. 

7.On 5 June 2018 the police arrested the Defendant outside Sha Tin Magistrates’ Courts.

8.The Defendant has been a Form 8 recognisance holder since 27 May 2017 up to today.

Mitigation

9.The Defendant is aged 41, educated up to primary level in Vietnam.  He had been sentenced for 15 charges in 8 court from 2005 to 2017.  Immigration offences apart, his other records were as follows:

(1) burglary x 1 in 2012;

(2) theft (pickpocket) x 1 in 2014;

(3) theft (shoplifting) x 1 in 2014;

(4) attempted theft x 2 in 2016;

(5) theft (shoplifting) x 1 in 2016;

(6) theft x 1 in 2015;

(7) theft (shoplifting) x 1 in 2017 (sentenced after the present offence was committed).

10.His parents, his wife and all his children are in Vietnam.  His sister is in Hong Kong, already a local citizen.  Mr. Lou his solicitor informs me that as a Form 8 recognisance holder he did not have enough money so he committed the present offence. 

11.Mr. Lou submits that the two padlocks were affixed externally, hence demonstrably no one inside Room D when the Defendant entered.  He did not bring any tools but used the spanner and the chopper found in Room D to break the padlock to the bedroom.  While doing so, he injured his hand.  That caused the bleeding. I am asked to consider a lower starting point.

12.Mr. Lou does not dispute that his repeat offending for theft and his status as a Form 8 recognisance holder at the time of the offence are both aggravating factors in his sentence. 

Sentencing guidelines

13.The starting point is 3 years for burglary of domestic premises for a first offender of full age in the absence of aggravating factors (R v Chan Yui Man CACC 36/1988). 

Sentencing the Defendant

14.On the one hand there was demonstrably no one inside to be alarmed when he entered.  On the other hand there was substantial property loss to the occupants.  I consider 3 years still appropriate as the starting point based on the facts of the case.  Being a persistent thief, his sentence has to be aggravated for more deterrence.  I add 3 months to the starting point.  His being a Form 8 recognisance holder, who lives at the courtesy and under the care of the Hong Kong community, was committing an offence against the interest of the local citizens.  This is another aggravating factor.  I add 3 months to the starting point.   

15.The actual starting point is thus 3 years 6 months.  After a one-third discount for the plea of guilty, the sentence is 2 years 4 months.