HKSAR v. So Ma-tai

DCCC 503/2020

[2021] HKDC 129

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 503 OF 2020

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Reasons for Sentence

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1.The defendant has pleaded guilty to a single charge of burglary occurring on 4 May this year at the Southern Guesthouse in Yau Ma Tei. The guesthouse is situated on the 5th Floor of a premises in Jordan Road. The guesthouse is entered by a front door. That front door is unlocked from 7 o’clock in the morning till midnight. The guesthouse has a common area for use of its patrons. There is a television set placed on the shelf in the common area.

2.In the evening of 4 May, the television was found to be missing.  The CCTV footage of the common area showed that the defendant had entered the guesthouse at 8 o’clock in the morning of 4 May.  He had gone to the common area of the guesthouse and then taken the television set.

3.The defendant was stopped on 4 May as well. Under caution, he said he had stolen the television set to sell it for money because he was too poor to buy himself any lunch.

4.In his recorded interview, he said he had gone to the guesthouse to use its restroom.  He had taken the television set because there was nobody on duty, there was no staff in the guesthouse, and then he had traded the television set for a lunchbox.

5.The defendant admits all this.

6.As far as his background is concerned, he is 44 years old.  He lives with his elder sister at a public housing unit.  He has been in assistance of CSSA.

7.As far as his criminal background is concerned, he has been sentenced in court on 12 previous occasions.  He has one offence of burglary back in 1989 when he was placed on probation.  The defendant has been sentenced for offences of dishonesty such as shoplifting.  Although he has a similar offence, it is an old offence now.

8.The court must decide the appropriate starting point for this offence.  The guideline in relation to burglary is distinguished between domestic and non-domestic premises.  The starting point for sentence in relation to a non-domestic premises burglary would normally be 2½ years’ imprisonment, whereas the domestic premises burglary would be 3 years. 

9.The courts have treated a hotel room as being a burglary to a domestic premises.  Of course, each premises is to a certain extent unique.  A guesthouse is a commercial premises with residential use, so it is what one could describe as a hybrid premises.

10.I also bear in mind that the burglary occurred in the common parts of this premises, not in one of the rooms that was occupied by a guest.  Were I to adopt the normal guideline, it would appear that the guideline for a non-domestic premises may be more appropriate in this case.

11.The defence has submitted to the court that this case more closely resembles what may be described as a sneak theft burglary and refers the court to the case of HKSAR v Cheung To Ming, CACC 406/2005. This involved the burglary of a non-domestic premises on a hillside, which had already been broken into, and the offender had walked into the premises and stolen therein, and a starting point of 18 months’ imprisonment was adopted for that particular form of walk-in burglary.

12.It has also been said that the conventional starting point can be lowered in the case of an opportunistic burglar akin perhaps to the sneak thief who walks into an open office to steal whatever he can find.

13.The defendant here is an opportunistic burglar.  He has walked into the common parts of this guesthouse to steal what he could find there.

14.When deciding the starting point for this particular offence, I bear in mind also that the commercial premises does have a residential aspect to it.  For that reason, I would adopt a slightly higher starting point than that adopted in Cheung To Ming and my starting point in respect of this offence would be one of 21 months’ imprisonment.

15.I also bear in mind that the defendant is not a first offender.  He has a conviction of a burglary in 1989.  In 2019 he has two convictions for the offence of shoplifting or theft.  Now, of course, in the course of the burglary he has again committed a theft.  It is a similar type of offence.  That is an aggravating feature of this offence. 

16.I will further increase the starting point by 3 months to represent that.  That leaves me with a starting point in this case of 24 months’ imprisonment. 

17.The defendant, due to his plea of guilty, is entitled to a one-third discount from that, which leads to a final sentence of 16 months’ imprisonment, the sentence I will impose.