HKSAR v. Wong Chi Chung

DCCC 542/2018

[2019] HKDC 466

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 542 OF 2018

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REASONS FOR SENTENCE

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1.Defendant is convicted of a charge of burglary, contrary to section 11(1)(a) and (4) of the Theft Ordinance, Cap 210 and a charge of failing to surrender to custody without reasonable cause, contrary to section 9L(1) and (3) of the Criminal Procedure Ordinance, Cap 221 on his own plea and agreement to amended summary of facts.

Facts

Charge 1

2.PW1 and PW2 are both security guards of a construction site at 100 Tai Ho Road, Tsuen Wan, New Territories (“the site”).  The same is surrounded by barricades.

3.Around two months before 3 May 2018 at 2 am, PW2 saw defendant at the site.  When PW2 asked defendant what he was doing, defendant said he was getting changed and when asked for an identity card, defendant ran away.

4.On 3 May 2018 at around 8 pm, when PW1 was patrolling the site, he saw defendant outside the ground floor entrance of Block 2 in the site.  Upon seeing PW1, defendant ran into Block 2.

5.PW1 called PW2 for assistance and then ran into Block 2 to look for defendant.  After a while, PW1 saw defendant running towards Block 3, but soon lost sight of defendant again.

6.PW2 later saw defendant near the entrance of Block 3 of the site, trying to put on a safety helmet.

7.PW1 and PW2 questioned defendant, and defendant said he worked there and had started working at 9 am but he could not produce details of his employer or foreman.

8.Later, police arrived and arrested defendant.  Under caution, defendant said he wanted to steal some loose change or notes for self-use and asked for a chance.

9.In a subsequent cautioned interview, defendant said the following:-

(a) on the offence date, defendant sneaked into the site via a gap between the barricades surrounding the site. Defendant intended to steal some loose change/notes inside the workers’ storage room to buy food for himself;

(b) defendant worked as a casual worker on the site from June 2016 to April 2017 and therefore he knew the workers’ storage room was used to keep the personal belongings of workers, and he believed that there would be coins there.

(c) defendant intended to unlock the combination lock to the workers’ storage room by trial and error;

(d) defendant only had HK$6.

Charge 2

10.On 27 July 2018, the District Court extended defendant’s bail for the instant case until the mention date, 4 September 2018 at 11 am, with reporting conditions.

11.On 3 September 2018, defendant did not report to the police station as required.

12.On 4 September 2018, defendant did not attend the court hearing.

13.On 8 September 2018, between 6 and 9 pm, defendant did not report to the police station as required.

14.In the morning of 10 September 2018, police arrested defendant in the streets of Hong Kong.

15.In a cautioned interview, defendant told the police that he remembered the court date wrongly and thought that it was on 14 September 2018.

16.Defendant had entered the site, which is a building, as a trespasser with intent to steal from the site, and he being a person admitted to bail, without reasonable cause, failed to surrender to custody as had been appointed by the court.

Criminal Record

17.Defendant had a clear record in Hong Kong. 

Mitigation

18.Defendant is aged 31.  He was educated up to Form 2 level in Hong Kong. He is a widower.  His wife died two years back and he has a daughter, now aged 3, who lived with and was looked after by defendant’s parents. 

19.Defendant was unemployed at the time of arrest.  He used to work as a transportation worker and a construction worker, earning on average monthly HK12,000.

20.Counsel for the defence submitted that defendant was a man of clear record and it is said that he pleaded guilty to both charges at the first available opportunity, saving court’s time and trouble. 

21.He also submitted a mitigation letter written by the defendant, which says that defendant had foolishly committed the present offence as he was then unable to find a job. 

22.It was also submitted that the daughter is still very young and she would have to spend some time without the care of the father after the recent loss of her mother and that, in the present case, there was no loss or damage to property.

23.He asked this court to be lenient in sentencing on the defendant.

24.As said by defence counsel for the defendant, the conventional starting point for burglary (non-domestic premises) is 2 years and 6 months, with no aggravating or mitigating factors, but this guideline is not a straitjacket. 

25.In the Court of Appeal’s decision in the case of HKSAR v Sim Ka Wing [2001] HKCU 498, the court says at paragraph 9 of the judgment that:-

“9. The conventional starting point of 2½ years’ imprisonment for the burglary of non-domestic premises relates to burglaries with no aggravating or mitigating features. Such burglaries will involve a measure of planning, and thus a degree of premeditation and planning is already built into the conventional starting point. The conventional starting point can be lowered in the case of the opportunistic burglar, akin perhaps to the sneak thief who walks into an open office to steal whatever he can find. Likewise, the conventional starting point can be increased in the case of professional criminals who plan their burglaries with meticulous care and steal goods and cash of considerable value.”

26.Defence counsel for the defendant had referred this court to the case of HKSAR v Lee Chiu Yui [2015] 1 HKC 323, where the defendant there also committed burglary in a construction site and the Court of Appeal disturbed the starting point of 2 years and 6 months. 

27.Nevertheless, it should be noted and as pointed out by Mr Ching for the prosecution that in that case, the temporary office in the construction site burgled had been cleared out with all properties removed and was ready to be demolished on the day following the offence. 

28.The Court of Appeal in that case subsequently adopted a starting point of 2 years, having regard to the array of house-breaking tools present and the appellant’s determined and purposeful acts of trespass.

29.It is correct that in the present case the defendant is not equipped with any house-breaking tools. 

30.Nevertheless, in the agreed facts, it was said that defendant had already trespassed into the site some time ago before the offence date and ran away when confronted.

31.The site is an area that was surrounded by barricades and is one for new building under construction and not a site for abandoned building pending demolition.  One therefore would expect there to be valuable building materials or, as said by or admitted by the defendant, valuables or changes in the workers’ storage room within the site.

32.The defendant on his own admission said he intended to open the workers’ storage room combination lock by trial and error.  There is no evidence to show whether the code for the combination lock during his previous employment had been changed since defendant is not working there.  Defendant came to know the location of the workers storage room used for the keeping personal belongings of workers by virtue of his previous working experience at the site and existence of loose change or notes inside the room.

33.The present case clearly is not a sneak thief or opportunistic burglary case.  There is a certain degree of planning, as he had paid a visit there some time ago.  In this case, the defendant was not able to steal anything only because he was intercepted by the security guards.  Defendant entered the site within barricades, although there is no evidence that he did break into or damage any locks or doors to the site. 

34.It is also noted that he did not bring along with him tools for breaking in or hand carts or any devices for carrying heavy items, so whatever he intended to steal at the site would be limited to those which is not sizeable or heavy.

35.Although the prosecution submitted that, as in the case of HKSAR v Sim Ka Wing, CACC 450/2000, and HKSAR v Wong Ho Yan, CACC 128/2012, that defendant, whilst committing the present offence, had made use of knowledge he acquired due to his previous work experience at the site and that there is therefore a breach of trust no different from the sort of breach of trust as in the case of R v Barrick (1985) 7 Cr App R (S) 142, there still remains a breach of trust involving the knowledge acquired by him whilst working there, that therefore the sentencing starting point should be adjusted upwards slightly.

36.This court on this occasion is not going to enhance the sentencing starting point, first, as there is no evidence that the defendant then was in the employment by the owner of the site, as in the case of these two cases cited, or that there is evidence that during the employment defendant being entrusted with any keys or code or combination lock to the workers’ storage room during the employment. 

37.In this case, therefore, considering all factors concerned, the court will adopt a sentencing starting point of 2 years.

38.Defendant used to be a man of clear record.  Commission of this offence appears to be one that is out of character. 

39.By reason of this mitigating factor, I am willing further to adjust the starting point downwards to 1 year and 9 months.

40.Defendant had pleaded guilty at the first available opportunity and is therefore entitled to full one-third sentencing discount. 

41.Accordingly, for the first charge, defendant is sentenced to 14 months’ imprisonment for this charge. 

42.As for the second charge, defendant was rearrested six days after he failed to attend court for mention or seven days since he failed to meet his bail conditions.  This is not a long period of time.  On conviction upon indictment, the maximum sentence for this offence is a fine of any amount and to imprisonment for 12 months.

43.In this case, considering the circumstances of the case, the appropriate starting point for this offence would be 4 months.

44.Defendant being a fresh offender, the same is adjusted to 3 months.

45.He has pleaded guilty at the earliest opportunity and is therefore entitled to full one-third sentencing discount.

46.Accordingly, he is sentenced to 2 months’ imprisonment for this offence.

47.The two charges are totally distinct and separate, entirely of a different nature.  Sentence for each charge should therefore be consecutive to each other.

48.This court has also considered the totality principle and is of the view that the total sentence of 16 months is just and proportionate to the overall criminality of the defendant in the present case. 

49.Accordingly, sentence of the first charge standing at 14 months is to run consecutive to the 2 months’ imprisonment sentence in the second charge, making a total sentence of 16 months’ imprisonment.