HKSAR v. or Kwong Yau

DCCC 13/2020

[2020] HKDC 186

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 13 OF 2020

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REASONS FOR SENTENCE

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1.The defendant pleads guilty to one charge of burglary of domestic premises, contrary to section 11 of the Theft Ordinance[1].

2.Full particulars of the offence are set out in the summary of facts admitted by the defendant. 

3.In summary in September 2019 House No. 5, Tsam Chuk Wan Tsuen, Tai Mong Tsai Road in Sai Kung (“the house”) was undergoing renovation.  Madam Shek and Mr Lee, a married couple, were the owners of the house.  During the renovation Madam Shek and Mr Lee moved out temporarily and were living in another village house.

4.The door of the house was left unlocked to facilitate access by the renovation workers. 

5.At about 8:49 p.m. on 24 September 2019 Mr Wan, the brother-in-law of Mr Lee and who lived in the same village, saw the defendant acting furtively outside the house.  Mr Wan approached and asked the defendant for his identity.  The defendant was unable to answer. 

6.Mr Wan then asked the defendant to leave.  The defendant walked away and boarded a private car parked outside the house and drove away. 

7.At about 9 p.m. Mr Wan called and notified Madam Shek who then took her dog out for a walk.  As Madam Shek walked towards the house she saw the defendant carrying a carton box of a Sony Bravia 32” television. 

8.Madam Shek identified the television as identical to the one placed on the 2nd floor of the house.  When Madam Shek asked the defendant why he took the television from the house the defendant became nervous and immediately ran away with the television. 

9.Madam Shek immediately alerted Mr Lee who immediately went out and gave chase.  Mr Lee saw the defendant jumping into the bushes together with the television.  The police were called and located the defendant lying in the bushes with the carton box containing the television next to him.

10.Under caution the defendant admitted, inter alia, that on seeing the door of the house unlocked out of greed he entered the house and stole the television for his own use.

11.The defendant also led the police to a private car parked nearby which had been lent to him.

12.Subsequently Madam Shek produced the receipt for the purchase of the television which bore the same serial number marked on the television.   The television was worth $3,790.

13.Photographs of the house and television have been submitted to court.   The defence accept that the television was brand new. 

Mitigation

14.In passing sentence, I have carefully considered the oral and written submissions of Miss Chong including that the defendant has a clear record and that this is a single fall from grace[2].

15.I have read the mitigation letters written by the defendant’s adoptive family and his friend Mr Wong, who lent him the car.  The defendant is described as filial and hard-working and has the prospect of a good future as an instructor in making desserts.  This is also reflected in the documents submitted to court by Miss Chong[3].

16.The defendant’s adoptive mother, sister and aunt and Mr Wong are in court today to show their support for the defendant. 

Starting point

17.The correct starting point for a single burglary of domestic premises committed by a first offender of full age where there are no aggravating or mitigating features is 3 years’ imprisonment.

18.Miss Chong submits that the burglary was opportunistic and that the defendant acted out of momentary greed[4]. I have considered the cases cited by Miss Chong in support of the submission that the starting point should be adjusted where the offence is opportunistic[5].    

19.I disagree the burglary was opportunistic and that the defendant acted out of momentary greed.  The defendant was first seen outside the premises and told to leave only to return a short while later and steal the television. 

20.The defendant drove to the house in a car lent to him for use that night by Mr Wong.   The television was brand new.  This is not a case of someone walking past vacant premises and taking items of little or no value. 

21.Lower starting points have however been taken where premises are vacant or under renovation where the premises are not occupied[6].

22.The defendant having a clear record I have considered the need for individual justice as submitted by Miss Chong[7]. The case cited by Miss Chong is very different.  The appellant in that case was a young offender, aged 19 whereas the defendant is a mature adult, aged 31.

23.In all the circumstances I am satisfied that the appropriate starting point for the burglary is 2 years and 3 months’ imprisonment.  Giving the defendant full credit for his plea of guilty he is convicted and sentenced to 1 year and 6 months’ imprisonment.