HKSAR v. Kwok Chak Kau

DCCC 591/2019

[2019] HKDC 1463

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 591 OF 2019

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REASONS FOR SENTENCE

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1.The defendant, 43, pleaded guilty before me to one count of Burglary. The premises concerned are dwellings – a village house with a walled front yard in Cheung Muk Tau Village, Wu Kai Sha, Ma On Shan.

2.Sometime past mid-night on 7 June 2019, the victim, Mr. Chan, left his iPhone charging the batteries on top of a TV set in the living room on the ground floor and then went to sleep.  In the middle of the night, Mr. Chan woke up and discovered that his iPhone was missing. The iPhone is worth $9,800.

3.Before going to bed, Mr. Chan had locked the front door to the house but only had the window shut, which means someone could easily open the window and reach the iPhone from outside.

4.Later in the day, a patrol officer stopped the defendant in Un Chau Street, Sham Shui Po for questioning, and found three mobile phones on him – one of them later confirmed to be Mr. Chan’s lost iPhone. 

5.The defendant told the officer that he stole the phone from a village house and was on his way to sell it.  He said in the small hours of the morning, he went through an open gate to the front yard of a village house, saw an iPhone on the TV set, opened the window and took it away, then shut the window and left.

6.The defendant has 4 previous convictions, two of which are similar - the first conviction is fighting in a public place in 1994 for which he was bound over; his last two convictions in 2016 are burglary and attempted burglary for which he was sent to prison for a total term of 2 years.

7.In mitigation, the court heard that the defendant is a married man and has a 12-year-old step daughter; he lives with his parents in Hong Kong while his wife and the daughter are residing in the Mainland. 

8.The defendant did not have much education, counsel said, he only completed Form One. He had done a number of jobs since leaving school and at the time of the offence he was a warehouse worker earning $12,000 a month out of which he would pay $5,000 to his parents and $4,000 to his wife.

9.Counsel said the defendant, who did not live far from the village house in question, had the habit of feeding stray cats at night time. On that night he was out just to do that.

10.While feeding the cats, he heard some quarrelling coming from the house, he then pushed open the gate and went over to see if anything he could help.  There he realized the noise was coming from the TV itself, but as he saw the iPhone on top of the TV, out of greed he opened the window and took it away.  

11.Unlike most burglaries, Counsel for the defendant, Miss Wu, said the defendant did not use any tools to break into the premises, the gate and window were not locked at the time. She submitted that this was only a case of opportunistic burglary - the defendant was no more than a sneak thief - and for this reason asked the court to depart from the usual sentencing guidelines.  

12.Miss Wu also stressed the fact that the entry into the premises in the instant case was minimal - the defendant merely stretched his hands through the window once, which is akin to the situation in the case of Khan Asif [2010] 1 HKLRD 404, in which the appellant “popped his head in through the window, remained in that position for 5 to 6 seconds.” The Court of Appeal considered an 18-months’ imprisonment appropriate for a charge of burglary.

13.It is worth mentioning that in Khan Asif, the appellant had not stolen anything. And in Cheung To Ming CACC 406/2005, another case relied upon by the defence, the appellant, an illegal immigrant, came to Hong Kong and hid in a hillside until mid-night when he became hungry. At about 2:30a.m., he went past non-domestic premises. Finding the door to those premises ajar, because others had broken into it earlier in the night, he went inside and ate two packets of noodle. The Court of Appeal considered an 18-months’ imprisonment appropriate for a charge of burglary.

14.First of all, I do not accept the defence story as to how the defendant came to the house on the night in question. Miss Wu told the court that the defendant lived in a public housing unit in Yiu On Estate which is not a short distance from where the village house was. I do not think he would go that far to feed the cats at night time.

15.On the other hand, if the TV was on as the defence alleged, the defendant must have realized that someone was home at the time probably watching the TV in the living room, he would be asking for troubles if he put his hands anywhere near the TV which would alert the person in the house.

16.I believe he went there scanning the environments to look for opportunities to steal, but unfortunately for Mr. Chan, the defendant was able to find an unlocked window of his house. Unlike the above two cases, the defendant in the instant case got away with an expensive item – an iPhone. 

17.For iPhones, the Court of Appeal has this to say in Liu Lin Feng CACC 206/2011(a case of pickpocketing):

“Para. 36: iPhones and similar third-generation telephones are not only expensive items, easily sold on and difficult to trace once the SIM cards have been removed, invariably they contain large amounts of data of importance to the owner, data that is both practical and sentimental. Their theft therefore may well put their owners to a high degree of distress and inconvenience.”

18.Here in the instant case, the defendant walked through the front yard of somebody’s residence, though he did not enter the house, his entry to my mind was no minimal and the fact that he got away with an expensive item (an iPhone), he was no sneak thief either.

19.Given the fact of the instant case, I take 3 years as the starting point. Insofar as mitigation is concerned, apart from his guilty plea there is not anything of substance. His plea is timely, so he is entitled to a full one third discount.

20.His previous convictions of burglary could have qualified him as a repeat offender, but I do not intend to increase the sentence any further this time and only want to serve as a warning to him, if he were to commit similar offences in the future, it would likely be taken as an aggravating feature to enhance his sentence.

21.Giving the appropriate discount, the starting point is reduced to 2 years. There being no reasons for further reduction in sentence, the final sentence is one of 2 years’ imprisonment.