HKSAR v. So Po-shun

DCCC 520/2019

[2019] HKDC 1697

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 520 OF 2019

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Reasons for Sentence

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1.The defendant, Mr So, has pleaded guilty to a single charge of burglary that was committed on 1 May 2019 at a premises in Fanling. The premises were a two-storey village house, the first floor being occupied while the ground floor was vacant. The ground floor was normally secured. However, the wooden door of the ground floor premises had been left unlocked but the iron door on the other side was locked.

2.The offence was detected by the person who lived next door.  He heard a noise, went out to check, saw the house door was open and its glass door was shattered.  He saw the defendant walking out of the house and the defendant said “the flat looked very nice”.

3.The CCTV footage of the house was examined.  The defendant was seen to open the iron door forcibly and then enter and then leave the house a couple of minutes later.  The in respect of door’s glass was shattered and a shower stand had also been taken down inside the premises.

4.The defendant was arrested and interviewed under caution.  He said he had opened the iron door with force or with his strength, it says, and broken the shower hose.  The total cost of damage was about $5,300.

5.The defendant admits he went in with intent to steal or do unlawful damage in the property.

6.The defendant is aged 44.  He has a number of criminal records dating back to 2003; offences of dishonesty and offences of burglary in 2013 for which he was sent to a Drug Addiction Treatment Centre. The defendant has a son who is a logistics worker.

7.The defendant’s major problem in life is that he has had an addiction to codeine.  He has been abusing that drug since 1993.  He has been fined, given suspended sentences of imprisonment and sent to Drug Addiction Treatment Centre in respect of his offences committed whilst under the influence of that drug.  The defendant is no longer drug dependent because of his time he spent in prison but he may well relapse on release.

8.The defendant’s mitigation is that he was under the influence of cough syrup, that is the codeine, when he went into this premises, and the facts tend to support that mitigation.  He, as a result of taking the drug, he decided he wanted to go into the apartment and he pulled hard on the door, looked inside, did some damage in the property.  The defence points out that he was not really able to give a sensible explanation of his urge to damaging the property to the police.  I am satisfied that the defendant is properly convicted on his plea for this offence.

9.The question of sentence should be addressed in this way.  The defendant has committed a burglary in a domestic premises.  The normal starting point for sentence for such an offence for a person of clear record after trial would be 36 months’ imprisonment or 3 years’ imprisonment.

10.The defendant is also in breach of a suspended sentence which was ordered by the court on 28 February 2019.  Then the question arises whether that suspended sentence should be brought into effect.

11.The third matter to consider of course is the defendant’s previous convictions for offences of dishonesty, particularly his previous conviction of an offence of burglary in 2013, and that can be seen as an aggravating factor in relation to this offence.

12.Once those factors have been brought into consideration, I must also give the defendant a one-third discount for his plea of guilty.

13.The defence argues, I believe correctly, the court has a discretion as to whether to take the full 36 months as a starting point in this case.

14.The defendant is described as an opportunistic burglar who was able to enter a vacant premises which had not in fact been locked securely.  In the premises, it shows little planning and the defendant obviously under the influence of some narcotic at the time when he was making the decision to break into these premises.

15.Obviously a sentence of imprisonment is warranted.  I will take a starting point for this particular burglary, taking into account all these factors, take a starting point of 27 months’ imprisonment. I will add an additional 3 months to that starting point to reflect the aggravating factor of the defendant’s previous commission of offences of burglary and offences of dishonesty.  From this starting point of 30 months’ imprisonment, I will bring into effect the mitigating factor of the defendant’s plea of guilty, reducing the sentence at this point to one of 20 months’ imprisonment.

16.There is then the question of the offence of attempted theft in February 2019 for which the defendant was given a suspended sentence of 2 months’ imprisonment with a suspension for 3 years.  The instant offence was committed within a few months of the suspension of that sentence. I see no reason why this offence should not be brought into effect in its entirety, leading to a final sentence for this defendant of 22 months’ imprisonment.  That will be the sentence of the court.