HKSAR v. Fung Chung Keung

DCCC 1006/2018

[2019] HKDC 704

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 1006 OF 2018

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Reasons for Sentence

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Charges and facts

1.The Defendant pleads guilty to the burglary of a mobile phone shop (Charge 1) and failing to surrender to lawful custody (Charge 2). 

2.In the evening on 9 November 1999, the manager of a ground floor mobile phone shop in Mong Kok locked up the shop after business hours and left. 

3.At 4:30 a.m. on 10 November 1999, a nearby resident woke up and saw 4 people, including the Defendant looking around outside the shop.  One of them used a pair of 3-feet pliers from a van parked outside the shop to break open the lock.  They then pulled up the roller-shutter for about 6 inches.  They dispersed as a vehicle passed by.

4.At 5:00 a.m. they re-grouped outside the shop and looked around.  They dispersed several minutes later.

5.At 6:00 a.m. they returned and pulled up the roller-shutter.  The Defendant and 2 of them entered the shop while one stood outside watching.  One of them took out a paper box from the shop to the van but returned it to the shop soon afterwards.  The resident called the police.

6.The police arrived in time to arrest the Defendant and two of them.  The broken lock of the shop was on the floor. After arrest and caution, the Defendant said that he only intended to enter with the three people to mess around. 

7.A wooden door inside the shop had prized marked.  The drawers of two desks were opened and ransacked.  Paper boxes containing old files were moved.  Some were opened.  No property was lost. 

8.On the van were found two iron rods for locking the roller shutter of the shop, plastic boxes, plastic bucket, screwdriver, worker gloves, crowbar and pliers.  

9.In the subsequent video-recorded interview, the Defendant admitted that:

(1) He saw some telephone logos at the door of the shop and intended to enter the shop to look for telephones or valuables but in vain;

(2) There were only documents inside and he got angry, so he pushed over a few boxes;

(3) The police arrived 3 minutes later;

(4) He had cut the door lock with a pair of pliers;

(5) He put on worker gloves to prevent cuts while moving objects.

10.On 12 November 1999, he was charged and appeared before North Kowloon Magistrates’ Courts.  The case was adjourned to 19 November 1999 for mention.  He was granted bail.  On 19 November 1999, he failed to appear in court. 

11.On 3 September 2018, he was arrested after surrendering himself as he entered Hong Kong via Lo Wu Control Point. 

Mitigation

12.He is 62 years of age.  Although not ever formally married, he has 5 children, from as old as 36 years to as young as 11 months, by or relating to his girlfriends in turn, in Hong Kong or else in Mainland China. 

13.Before arrest, he was a farmer working on his girlfriend’s father at the hillside in Mainland China.  She is his fiancée.  He had also rented out some houses inherited from his stepfather. 

14.He surrendered himself to the Hong Kong police as he wanted to end his fugitive life, so that he could marry his fiancée and bring their children to Hong Kong for better education opportunities.   He has to financially support the 3 youngest children, who are aged between 14 years and 11 months. 

15.He has a lot of criminal records, including theft and deception and others.  The last was in January 1995 for robbery which resulted in 6 years’ imprisonment. 

16.I am informed in mitigation that two of his burglary accomplices were sentenced to 20 months on a guilty plea.  The third one was sentenced to 26 months in total for the burglary and the extra charge of failing to surrender to custody. 

Sentencing guidelines

17.In R v Wong Man [1993] 1 HKC 80, the Court of Appeal says that the proper starting point for non-domestic premises shall be 2 years 6 months’ imprisonment for a first offender of full age. 

18.In HKSAR v Sim Ka Wing CACC 450/2000, the Court of Appeal explains that the 2½ years' starting point for burglary of non-domestic premises is adopted where there are elements of planning for the burglary. 

Sentencing the Defendant

19.Adopting the customary starting point of 30 months, I increase it by 4 months to take into account the joint enterprise with 3 others.  The actual starting point is 34 months.  After a less than one-third discount for the late plea of guilty, the sentence for Charge 1 is 24 months.  I deduct 3 months from it for no property was lost to the shop.  The sentence is 21 months for Charge 1.     

20.I take a starting point of 12 months for Charge 2.  After a one-third discount for the plea of guilty, the sentence is 8 months.  As he surrendered himself to be arrested, I give him 2 months’ extra discount.  The sentence for Charge 2 is 6 months. 

21.By totality, I order 1 month of Charge 2 to be concurrent with Charge 1.  The total sentence is 26 months.