HKSAR v. Chung Tin Fook

DCCC 395/2020

[2020] HKDC 720

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 395 OF 2020

------------------------------

------------------------------

---------------------------------------

REASONS FOR SENTENCE

---------------------------------------

1.The defendant, a 52-year-old man, pleaded guilty before me to one count of burglary.

2.This is a case of dwelling burglary. The burgled property is the home of Madam Tam (72) who lives with her son on the 11^th floor of a residential building in Wan Chai.

3.In the morning of 16 February 2020, Madam Tam secured all the doors and windows except those in the living room before going out; when she returned in the afternoon, however, she discovered an intruder, the defendant, in her flat.

4.There was a bit of a tug of war going on between Madam Tam and the defendant over the door of her flat when she tried to open it, while the defendant was behind it stopping her getting in. Not long after that, the defendant suddenly rushed out with Madam Tam’s handbags, one in each hand, and ran down the rear staircase.

5.As one of the handbags has cash $123,980 in it, Madam Tam gave chase by taking the lift down hoping to stop him downstairs. At the Ground Floor, the security guard of the building, Mr Lam, already stopped the defendant but on seeing the approach of Madam Tam who shouted help from Mr Lam to stop the defendant, a struggle ensued between Madam Tam and the defendant, and finally the defendant made good his escape but leaving behind the two handbags.

6.Although Madam Tam was lucky enough to have recovered the large amount of cash in the handbag, she still lost some properties at home such as $1,000 RMB, 40 masks and two passbooks.

7.The defendant’s images were captured by the CCTV of the building.  About two weeks later on 28 February, patrol officers stopped the defendant in Wan Chai streets for questioning as he resembled those images of the culprit in the CCTV. The defendant was thus arrested.

8.In the subsequent interview with the police, he told the officers that he had no money as he had just been released from prison and that he had returned all the cash to the owner.

9.The defendant was last discharged from prison on 4 February 2020. According to his criminal records, his last conviction is burglary in May 2019 for which he was sent to prison for 21 months and 2 weeks (The court heard this was a non-dwelling burglary). In other words, he committed a recent and yet more serious offence (a dwelling burglary) within 12 days of his release from prison.

10.He is no stranger to the court – he has amassed 13 prior convictions in the past – some violent offences like wounding as well as robbery, while burglary is his second conviction.

11.“The defendant, a divorcee, does not have a fixed abode but has to stay in hourly hotels. He is a certificated crane operator and could have worked in the construction sites but because of the pandemic, he could not get any job. The crime was committed out of financial destitution,” counsel for the defendant, Mr Ng said.

12.Mr Ng stressed that there was no force used in the course of committing the crime. In fact, the defendant knew about the large sum of money in the handbag, but on seeing the victim being an old lady which excited his sympathy, he decided to run away empty-handed leaving the cash behind.

13.Mr Ng fairly accepted that there are aggravating features in the instant case in that soon after his release from prison, only 12 days indeed, the defendant turned to crime again and committed another burglary. He nevertheless asked the court not to enhance more than 3 months on top of the usual term for domestic burglary.   

14.Given the facts of the case, I take 3 years as the starting point and add 3 months on top for the aggravating factor - committing crimes within a relatively short period of time after release from prison - which brings the starting point up to 3 years and 3 months.

15.Insofar as mitigation is concerned, there isn’t anything of substance besides his guilty plea which is timely, so he is entitled to a full one-third discount. Having discounted it, the starting point is reduced to 2 years and 2 months.

16.There being no reasons for any further reduction in sentence, the defendant is therefore sentenced to 26 months’ imprisonment.