HKSAR v. Chan King Fan

DCCC 427/2019

[2019] HKDC 1499

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 427 OF 2019

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REASONS FOR SENTENCE

1.The defendant pleads guilty to two charges of burglary, contrary to section 11 of the Theft Ordinance[1] (charges 1 & 2); one charge of possession of an offensive weapon in a public place, contrary to section 33 of the Public Order Ordinance[2] (charge 3) and one charge of possession of apparatus fit and intended for the inhalation of ice, contrary to section 36 of the Dangerous Drugs Ordinance (charge 4)[3].

2.Full particulars of the offences are set out in the facts admitted by the defendant today. 

Charge 1

3.In the evening of 23 November last year Mr Leung the manager of Gold Garden Kitchen restaurant in Ma On Shan locked the drawer of the cashier containing about $10,000 and locked the door of the restaurant.

4.The next morning at about 10:30 a.m. Mr Leung returned to the restaurant and found the drawer of the cashier was open and the cash missing. 

5.CCTV footage showed that at about 4:04 a.m. on 24 November a male had forcibly opened the front door of the restaurant, prized open the drawer of the cashier and stole the cash box containing the cash. 

6.Upon reviewing the CCTV footage, the police were able to identify the defendant as the culprit. 

Charge 2

7.At about 7:00 p.m. on 25 November 2018 Mr Wat was working as a street promoter of a telecommunication company near the carpark at Ginza Plaza in Mongkok when he saw a male enter the cashier post of the carpark.  Mr Wat who regularly worked in that area did not recognise the male as a staff member of the carpark and therefore made a report to the police.

8.CCTV footage showed that the male first loitered in the carpark and then picked up a towel and prized open the cashier post and tried to prize open the cashier. 

9.Mr Wong, a security guard working at the carpark confirmed the cashier post had been locked at about 2:10 p.m. that day and that when he returned to the cashier post he found the cashier had been damaged but nothing was stolen.  The cashier cost about $5,000 to repair. 

10.The police lifted the defendant’s fingerprint from the window pane of the cashier post.

Arrest

11.In the early hours of 3 December last year the police mounted an arrest operation. At about 3:00 a.m. PC 7470, who was in plainclothes, found the defendant returning to his residence together with his friend. When the defendant and his friend entered the lift and before the lift door closed PC 7470 and another police officer in plainclothes approached and disclosed their identities.  At the time the defendant was facing the police officers and holding in his left hand a paper cutter with the blade exposed.  The defendant did not wave the cutter at the police officers and did not resist arrest (charge 3).

12.Upon search of the defendant’s shoulder bag the police found apparatus fit for smoking dangerous drugs (charge 4).

13.The defendant was arrested.  Under caution and in subsequent video recorded interviews the defendant admitted, inter alia, the first burglary; that he was the person seen in screen captures taken from the CCTV footage of the cashier post; the ownership of the cutter which he had kept in his bag and that the apparatus belonged to him and was used for smoking ice. 

14.The police also conducted a house search and found clothes worn by the defendant when committing the burglaries. 

Mitigation

15.In passing sentence, I have carefully considered the oral and written submissions of Ms Hui, including that the defendant has suffered from psychiatric illness since 1998 and has been diagnosed with substance induced psychotic disorder for which he has been hospitalized on multiple occasions[4].

16.I also take into account that whilst serving sentence the defendant is willing to receive counselling services from The Hong Kong Christian Kun Sun Association Ltd and that the social worker Mr Leung Kwok Ki has attended court to support the defendant.

Starting point

Burglary

17.The correct starting point for a single burglary of non-domestic premises committed by a first offender of full age where there are no aggravating or mitigating features is 2 years and 6 months’ imprisonment.

18.Although the defendant has a long criminal record taking into account his last conviction for an offence of dishonesty was in 2011, I do not enhance the starting point by reason of his persistent offending.

19.Giving the defendant full credit for his pleas of guilty reduces the sentence on charge 1 and charge 2 to 1 year and 8 months’ imprisonment.

Possession of an offensive weapon in a public place

20.There are no guideline sentences, the length of sentence depending on the facts of each case.  Section 33(2)(d) of the Ordinance provides that a person convicted of an offence who is of the age of 25 years or more shall be sentenced to imprisonment for not more than 3 years. 

21.The defendant told the police the cutter was for self-defence.  Ms Hui informs the court that the defendant carried the cutter because he was attacked in June 2015 and feared he may be attacked again.  When the police approached he did not know who they were and took the cutter out of his bag.  After the police revealed their identity and asked him to surrender the cutter he handed the cutter to the police. 

22.I am satisfied the defendant did not have lawful authority or reasonable excuse for possession of the cutter. 

23.A cutter is capable of causing serious harm.  Taking into account all the circumstances including that the defendant possessed the cutter in the early hours of the morning and did not use the cutter to threaten the police officers or resist arrest, I am satisfied the proper starting point after trial is 9 months’ imprisonment.  Giving the defendant full credit for his plea of guilty reduces the sentence to 6 months’ imprisonment.

Possession of apparatus fit and intended for inhalation of ice

24.For possession of apparatus fit and intended for inhalation of ice I am satisfied a starting point of 3 months’ imprisonment is appropriate.  Giving the defendant full credit for his plea of guilty reduces the sentence to 2 months’ imprisonment.  

Totality

25.Where burglary offences are committed in different premises against different victims on different dates consecutive sentences should be imposed. 

26.Taking into account the two burglaries were one day apart; nothing was stolen in the second burglary; the possession of the cutter and the apparatus are entirely separate and distinct offences, I am satisfied a total sentence of 2 years and 10 months’ imprisonment properly reflects the defendant’s criminality on the four charges and takes into account the defendant’s personal circumstances and the seriousness of the offences[5].  

Sentence

27.The defendant is convicted and sentenced as follows:

Charge 1 – 1 year and 8 months’ imprisonment;

Charge 2 – 1 year and 8 months’ imprisonment with 8 months consecutive and 12 months concurrent to charge 1;

Charge 3 – 6 months’ imprisonment with 4 months consecutive and 2 months concurrent to charges 1 & 2; and

Charge 4 – 2 months’ imprisonment consecutive to charges 1, 2 & 3.

The total sentence to be served by the defendant is 2 years and 10 months’ imprisonment.

[1] Cap 210.

[2] Cap 245.

[3] Cap 134.

[4] See §10 of the written mitigation of the defendant together with the medical report submitted by the defence.

[5] See HKSAR v Ngai Yiu Ching [2011] 5 HKLRD 690 and HKSAR v Pau King Kong [2013] 3 HKLRD 676.