HKSAR v. Ma Chak Tin

DCCC 33/2019

[2019] HKDC 1019

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 33 OF 2019

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REASONS FOR SENTENCE

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1.Defendant was convicted on his own plea and agreement to the summary of facts to two charges of burglary, contrary to section 11(1)(b) and (4) of the Theft Ordinance, Cap 210.

2.PW1 (female, aged 41) lived in Room 3413, Ching Chung House, Ching Ho Estate, Sheung Shui, New Territories, Hong Kong (“L1”).  At around 9:15 a.m. on 7 May 2018, she left L1 after she secured her wooden room and metal gate.  Upon PW1’s return in the afternoon on the same day, she found the place burgled. She reported the same to the police and the police found a labour glove near the drainage pipes outside the flat L1. 

3.PW1 also found $4,500 New Taiwanese currency and ¥500 Renminbi missing from the flat L1.

4.PW2 (female, aged 55) lived in Room 3412, ie next door of flat L1 (“L2”). At around 9 am on 7 May 2018, she left the flat L2 and secured its wooden door and metal gate. 

5.On her return in the afternoon, she found defendant squatting outside in the corridor of her flat and she asked him what he was doing and immediately afterwards defendant picked up the black bag and fled via the staircase.  At the time, defendant was wearing a black mask and a yellow T-shirt. 

6.She then returned to her flat L2 and found the metal gate left ajar and the flat L2 burgled.

7.Upon checking, she found the following items, total value of which is HK$49,000 were missing and reported the case to the police. 

8.Stolen property included fourteen rings, five necklaces with two pendants, one pearl necklace, one wrist chain, four watches, one jade bracelet, two “ASUS” tablet computers and two “Apple” iPod Touches. 

9.CCTV camera installed on the ground floor of Ching Chung House captured the defendant wearing a yellow T-shirt and carrying a black bag, leaving Ching Chung House at around 1:56 pm on 7 May 2018.

10.Subsequently, defendant was arrested on 10 August 2018 and in the video recorded interview under caution he stated that:-

a)  he lived in Room 3313, Ching Chung House, Ching Ho Estate;

b)  on 7 May 2018, he climbed out from the kitchen of that flat, using a wooden stool and a cloth hanger and climbed up to the 34th floor;

c)  he then entered Room 3413 and ransacked the place for valuable items;

d)  he took some New Taiwanese Dollars;

e)  later, he left Room 3413 and climbed into Room 3412;

f)  he took some articles of gold and computers from Room 3412;

g)  afterwards he left Room 3412 via the main door and met the unknown female outside Room 3412;

h)  then he went to Sham Shui Po, exchanged the foreign currency and sold all stolen property for about HK$30,00; and

i)  he did not know any person living at Room 3412 or 3413.

11.He admitted that at the time he did not have any right or permission to enter either of the two flats but he entered them as trespasser and stole stolen property from the flats.

Criminal records

12.Defendant has four previous convictions with one relating to theft, which dated back to year 2004, some 14 years prior to the commission of the present offences. 

13.He was last released from prison on 18 January 2019, after an 8-month imprisonment term sentenced upon him in connection with a theft offence committed after the present two offences.

Mitigation

14.Defendant is aged 38.  He is born in Hong Kong.  He is single and received education up to Form 3 level. 

15.He lived with his sister and brother-in-law in a public housing estate at the material times.  At the time of arrest he was a street-sleeper.  He used to be a construction worksite worker until the date of arrest. 

16.Defendant now says that he is remorseful as to what he has done.  He admitted his guilt at the earliest possible opportunity after he was arrested. He asks this court for a sentencing discount, of which he is entitled.

Discussion

17.According to section 11(4) of the Theft Ordinance, any person who commits burglary shall be guilty of an offence and shall be liable on conviction upon indictment to imprisonment for 14 years. 

18.In this case, the premises in both charges are residential premises. 

19.As submitted by Mr Chan, defence counsel, the Court of Appeal in Chan Yui Man, CACC 36/1988, laid down sentencing guideline for burglary of domestic premises.  It was held that 3 years’ imprisonment was the proper starting point for a first offender of full age in domestic burglary.  It is also subject to adjustment upon any aggravating or mitigating factor.

20.It is true that in this case, as submitted by Mr Chan, defendant acted alone.  There is no evidence of forcible entry or the use of tools.  There was no violence in this case nor was there any confrontation.  Both premises at the time were not occupied and the mode of the burglary was not sophisticated nor was there the use of machinery.

21.It is noted, however, that the defendant wore a mask, clearly to hide his identity, at least at the time when he was outside the flat of PW2.

22.Upon persuasion from defence counsel, this court is not going to enhance the sentencing starting point for the offence. 

23.This court agrees as submitted that the defendant has only one conviction relating to dishonesty some 14 years back.  This court would not consider him a persistent offender at the time of offence. 

24.Since there is no aggravating factor, the sentencing starting point for both offences would be 3 years.

25.It is noted that the property stolen was not recovered and they amounted to $1,600 in the first charge and around $40,000 in connection with the second charge.

26.The court has also considered all mitigation submitted on behalf of the defendant and finds that the most valid mitigating ground being his timely guilty plea, of which he is entitled to full one-third sentencing discount.

27.Accordingly, for each charge, defendant is sentenced to 2 years’ imprisonment.

28.Defendant committed the first-charged offence and second-charged offence immediately one after another at two different locations proximate to each other, involving different victims. 

29.It is obvious that the commission of the second offence adds to the culpability of the defendant resulting from his conviction of the first offence. The property stolen in the second charge in fact is more substantial than that in the first charge.

30.Considering the totality principle and the overall culpability of the defendant in the present case, this court finds that the just and proportionate sentence on the defendant would be 3 years and 6 months and after the full one-third sentencing discount, the same is reduced to 2 years and 4 months.

31.Accordingly, 4 months of the sentence in the first charge is to run consecutive to the sentence in the second charge and the remaining 20 months’ imprisonment term shall run concurrent to the sentence in the second charge, making the total sentence on the defendant in this case to 2 years and 4 months’ imprisonment.