HKSAR v. Chu Wing Fung

DCCC 87/2020

[2020] HKDC 999

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 87 OF 2020

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Reasons for Sentence

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1.The defendant has pleaded guilty to two counts of burglary (Charges 1 and 2), one count of possession of an offensive weapon in a public place (Charge 3), and lastly one count of possession of apparatus for radiocommunications without a licence (Charge 4).

2.The defendant has pleaded guilty to entering as a trespasser part of a building known as Hong Kong Camy Academy of Dancing on the 9th Floor of 2-8 Yuen Long Tai Cheung Street, Yuen Long, with intent to steal therein.  He entered on two divers’ dates, 8 December and 10 December 2019; hence, Charges 1 and 2. 

3.When he was arrested during the course of Charge 2 by the police, he was searched and found to have possession of one dagger (Charge 3) and a walkie-talkie without an appropriate licence granted by the Communications Authority (Charge 4). 

4.On 8 December 2019, at about 9.04 pm when the dance academy was empty and locked up, CCTV footage captures the defendant attempting to prise open the wooden door but he failed.  The following day, the manager of the academy arrived at work to found the door damaged with obvious prise marks.  A police report was made. 

5.On the following day, 10 December 2019, at about 7 pm, that same manager found the defendant sitting on the stairs on the 9th floor and recognised him from the CCTV footage.  He called the police who came to the premises and arrested the defendant. 

6.Under caution, the defendant admitted he intended to steal from inside the dance academy and had tried to enter previously but failed, so he was coming back to try again.  He was bringing tools to try and enter successfully a second time.  The defendant made a full admission at the scene under caution. 

7.The police searched his rucksack and found a yellow spade, a walkie-talkie, a dagger and some clothes.  The defendant has pleaded guilty to possession of a dagger in public, an offensive weapon, as well as a walkie-talkie without the necessary licence and authorisation. 

8.The defendant is now 33 years old and single. He was unemployed at the time of his arrest.  He is not a man with a clear record.  He has seven previous convictions obtained over six court appearances.  Six of those previous convictions are burglaries and the last a theft of a bicycle.  His burglary convictions span from 2006 to 2016. 

9.Ms Lai has said all she can say on his behalf in mitigation.  The defendant is remorseful and his plea of guilty at the earliest opportunity reflects his remorse.

Reasons for Sentence

10.The defendant is in danger of being declared a recidivist and persistent offender.  This is his seventh and eighth burglary convictions.  On this occasion, I will not enhance the starting point for recidivism but he must be warned that there is a high chance that if he commits a similar offence again, then his previous convictions will mean a longer sentence. 

11.Normally, a burglary of commercial or business premises will attract a starting point of 2 years and 6 months.  On this occasion, he entered a commercial building as a trespasser but failed to break into the dance academy itself.  They suffered no loss except for the damage to a wooden door. 

12.I have considered the facts of the case, the mitigation put forward and the authorities referred to me by Ms Lai.  I will take a starting point of 2 years and 6 months for both Charges 1 and 2. 

13.Charge 3, possession of an offensive weapon in public, contrary to section 33(1) of the Public Order Ordinance, can attract a maximum sentence of 3 years’ imprisonment.  There are no guidelines in sentencing.  This offence is case- and fact-sensitive. 

14.I have considered the size of the weapon found in the defendant’s backpack with the other tools, and I find a starting point of 1-year imprisonment appropriate. 

15.Charge 4, possession of a walkie-talkie without a licence, normally attracts a fine but the maximum sentence that can be imposed is one of 2 years’ imprisonment.  Taking into account the facts of this case, I find a starting point of 3 months’ imprisonment appropriate. 

16.You have pleaded guilty at the earliest opportunity and therefore entitled to a discount of one-third from all starting points.  Therefore, after that discount is applied, the defendant is sentenced as follows: Charge 1, 1 year and 8 months; Charge 2, 1 year and 8 months; Charge 3, 8 months; Charge 4, 2 months. 

17.I have considered the totality principle as well as the nature and timing of the charges.  I will order 4 months of Charge 2 to run consecutively to Charge 1 and the balance concurrently.  I will order the sentences of Charges 3 and 4 to run concurrently to Charge 1.  Therefore, the defendant is sentenced to a total of 2 years’ imprisonment.