HKSAR v. Chan Kam Wing

DCCC 1143/2018

[2019] HKDC 289

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 1143 OF 2018

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REASONS FOR SENTENCE

1.The defendant pleads guilty to one charge of attempted burglary of domestic premises in Tsz Wan Shan, contrary to section 11 of the Theft Ordinance[1] and section 159G of the Crimes Ordinance[2].

2.Full particulars of the offence are set out in the summary of facts admitted by the defendant on 19 February 2019.  Sentence was adjourned for the defence to prepare translation of a Chinese judgment[3].

3.In summary at about 1:00 p.m. on 22 September last year Ms Tang, the occupant of Room 719, Ching Fai House, Tsz Ching Estate in Tsz Wan Shan, was at home when she heard the sound of metal prizing. 

4.Ms Tang opened the main door and saw a man running towards the back staircase. Upon checking Ms Tang found prize marks on the iron gate of the premises.  Ms Tang reported the case to the police. 

5.At about 3:30 p.m. the same day the police intercepted the defendant, whose appearance matched the description of the suspect given to the police by Ms Tang, on the corridor of the 5th floor of Ching Fai House.   

6.Under caution and in a subsequent video recorded interview the defendant admitted, inter alia, that he used a crowbar to prize open the iron gate of Room 719 to see if there was anything to steal and that he thought no one was in the premises at the time. 

7.The police recovered the crowbar from the defendant’s home at Room 516 of Ching Fai House.    

Mitigation

8.In passing sentence, I have carefully considered everything said on behalf of the defendant by Mr Kan as particularised in his mitigation notes and supplemental mitigation notes and orally in court, including that the defendant thought there was nobody in the premises at the time he attempted to break in and that he has pleaded guilty at the earliest opportunity.  Mr Kan informs the court that many offences committed by the defendant were due to drug addiction. 

Starting point

9.The correct starting point for a single burglary of residential premises committed by a first offender of full age where there are no aggravating or mitigating features is 3 years’ imprisonment. 

10.Mr Kan submits a lower starting point is appropriate by reason of the fact this was only an attempt with minimal entry and is therefore less serious than the completed offence of burglary. 

11.In support of his submission Mr Kan relies on the decisions of the Court of Appeal in HKSAR v Chung Cheuk Pang[4] and HKSAR v Khan Asif[5]where lower starting points were held appropriate for attempted burglary.

12.The defendant went equipped with a crowbar to break into Room 719 intending to steal money.  The circumstances of the attempt are very different to attempts to steal shoes placed between the wooden door and metal gate of premises as in HKSAR v Chung Cheuk Pang[6]and being lifted up to an open window of a shop to see if there was anything worth stealing as in HKSAR v Khan Asif.

13.Mr Kan also submits that a lower starting point is appropriate because Ms Tang although alerted should not have been frightened as there was no confrontation. 

14.In support Mr Kan relies on the decision of the Court of Appeal in HKSAR v Lee Wai Shing where the court held that a starting point of 2 years and 9 months imprisonment was appropriate where the chance and extent of anyone inside the premises getting frightened was relatively small[7]. 

15.Although in HKSAR v Lee Wai Shing the defendant was equipped with a screwdriver the Court of Appeal found that the defendant did not forcefully pry open the wooden door and therefore the chance of frightening anyone in the premises was much lower. 

16.The defendant used a crowbar to break into Room 719.  Photographs have been submitted showing the crowbar[8] and the damage to the iron gate[9].  The cost of repair to the iron gate was estimated to be about $6,000[10]. 

17.Although Ms Tang does not say she was frightened, knowing someone is trying to break into your home is clearly a frightening experience.  Fortunately, there was no physical confrontation because the defendant ran away upon realising someone was inside. 

18.I find no grounds to reduce the starting point.

Persistent offender

19.Rather than lower the starting point I am satisfied the starting point should be enhanced by reason of the defendant’s persistent offending.  The defendant has appeared in court on twenty-two occasions since 1975 when he was just sixteen, amassing a total of fifty-five convictions, thirty-one of which are for burglary.  Other convictions are mainly for offences of dishonesty and possession of drugs.

20.The defendant last appeared in court on 23 September 2015 when he was sentenced to 4 months’ imprisonment for possession of drugs.  The last conviction for burglary was in 2012 when the defendant was sentenced on 11 May 2012 to 22 months’ imprisonment. 

21.In HKSAR v Lui Yuen Shunleave to appeal was refused by the Court of Appeal against an enhancement of 12 months where the defendant had seven previous convictions for burglary and other convictions for offences of dishonesty[11].  In HKSAR v Wan Ho Kit, Lawence an enhancement of 12 months was upheld where the appellant had twenty-six previous convictions for burglary[12].

22.Taking into account the defendant’s last conviction for burglary was in 2012, I am satisfied an enhancement of 9 months to 3 years and 9 months’ imprisonment is appropriate.

23.Part B of the criminal record submitted on 19 February showed an outstanding offence of possession of dangerous drugs.  Mr Chong informed the court that the defendant was arrested on 12 September 2018 for possession of dangerous drugs and placed on police bail.  The attempted burglary was therefore committed while the defendant was on police bail. 

24.Mr Chong informs the court today that the defendant was in possession of Part 1 poisons and that after investigation the police confirmed that the defendant had a doctor’s prescription for the poisons.  In the circumstances although the attempt was committed whilst on bail I do not further enhance the starting point.

25.Giving the defendant full credit for his plea of guilty he is convicted and sentenced to 2 years and 6 months’ imprisonment.