HKSAR v. Choy Wai-ming

DCCC 567/2019

[2020] HKDC 118

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 567 OF 2019

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Reasons for Sentence

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1.Defendant has pleaded guilty to a single charge of burglary. The burglary occurred on 17th February 2019 at a residential or domestic premises in Wong Tai Sin in Kowloon.

2.The door and iron grille of those premises were secured around lunchtime.  When the occupier of the premises returned after lunch, he found that the door had been prised; specifically the iron grille had been prised.   There were signs of ransacking inside the premises.  There was an immediate report made to police. 

3.Subsequently, a number of items were found to have been taken, which were jewellery and other items amounting to some $260,470 in value.

4.The inspection of the CCTV in the vicinity of the building clearly shows the defendant in the building, walking in and out of the building, between 10.49 am and 12 pm on that day.

5.Defendant was eventually located through a pawnshop record for various of the items, leading to his arrest on 27th March 2019.  As far as the pawning had been concerned, he seems to have received from the record some $20,000 on 27th February 2019.

6.Defendant made a video recorded interview which he appears to say that he had found the items he had pawned in a bin - clearly unbelievable.

7.Government records show the defendant in Hong Kong at the relevant time and he has indicated his plea of guilty to this charge at an early stage, so I have convicted him.

8.As far as his background is concerned, his antecedents show him to be of the age of 37 at the time it was taken, educated in the mainland of China, and had been working in construction at the time of his arrest.  He was released from prison most recently in around July 2018 and again at the time of the compilation of the antecedents, he was married and had a daughter then aged 1.  The daughter appears to now be aged 2.  Clearly, he has a young child now to help look after.

9.The criminal record shows that the defendant has been convicted before on three previous occasions:  burglary in 2011, for which he received 12 months’ imprisonment, and then in 2017, for which he received 2 years and 2 months’ imprisonment.  Two relevant convictions, and, I have said, released from custody in July of 2018 in respect of a third offence.  There is one further offence of theft in 2014, for which he was again imprisoned for some 12 months.

10.The defendant prays in mitigation his plea of guilty, his remorse, and the fact he is now a father of a young child, and his family requires his financial assistance.  It is largely the result of his own poor financial position that he took part in this burglary.

11.As far as the approach to sentence is concerned, burglaries committed inside a domestic premises have a generalised guideline for sentencing.

12.The starting point for sentence for a person who pleads not guilty and has a clear record and is convicted after trial for a domestic premises burglary is one of 3 years’ imprisonment. 

13.That starting point is subject to increase for certain aggravating factors.  I do not propose to list them.  I propose to indicate which aggravating factor I find exists in this case.  The only aggravating factor that realistically exists in respect of this defendant is that he has previous convictions of a similar nature.  The burglary itself is a commonplace burglary, with little apparent planning or effort made into concealment of the perpetrator. So, in my consideration, there is only one aggravating factor here.

14.As far as this defendant is concerned, this is now his third offence of burglary, although I do take into account his changed family position since his last offences. 

15.I will enhance the sentence for this factor by 3 months.  That means the starting point for sentence in respect of this particular offence is 39 months’ imprisonment.

16.As far as mitigating factors, the only mitigating factor capable of reducing that starting point is the defendant’s plea of guilty.  There are no other mitigating factors which would permit any further reduction. 

17.That in this case is a one-third deduction from 39 months.  It leads to a sentence of 26 months’ imprisonment. 

18.That will be the sentence I will impose:  one of 26 months’ imprisonment.