HKSAR v. Chan Wing Lun

DCCC 820/2020

[2021] HKDC 159

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 820 OF 2020

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REASONS FOR SENTENCE

1.The defendant pleads guilty to one charge of burglary of a shop in Yau Ma Tei, 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 today[2]. In summary Mr Liu, the owner of a clawing machine shop, ceased business for the time being as a result of the Covid-19 pandemic.  Mr Liu did not however lock the entrance of the shop but placed a notice at the entrance stating entry was permitted only for the owner for machine testing.

3.At around 9:20 a.m. on 30 July 2020 Mr Liu saw from the internet-linked CCTV installed in the shop a man prizing open one of the clawing machines with a pickaxe.

4.Mr Liu immediately reported the case to the police. Shortly afterwards the police arrived at the shop and saw that the window of the shop was covered by a big black cloth.  The police found the defendant alone inside the shop. 

5.A roll of plastic tape, a pair of scissors, a pair of gloves and a pickaxe were found inside the shop. Photographs of the shop and exhibits have been produced to court.  I have also viewed the CCTV footage.

6.The defendant was arrested.  Under caution the defendant said he could not find a job, he had no money for his family and out of greed wanted to steal some dolls for resale. In a subsequent video recorded interview, the defendant said he entered the shop by pushing open the unlocked door.

Mitigation

7.In passing sentence, I have carefully considered the oral and written submission of Mr Wong, including that the defendant, aged 40, is married with a young daughter who is only five months old[3].

8.I have read the mitigation letter written by the defendant in which he expresses his regret for his stupidity which has resulted in the defendant being unable to see the birth of his daughter and has caused financial hardship to his family[4].  The defendant asks for a lenient sentence. 

9.Mr Wong explains that the defendant, who was the breadwinner of the family, committed the offence because he was in desperate financial hardship having been out of work for almost a month and had no money for his family[5].

Burglary

10.The correct starting point for a single burglary of commercial premises committed by a first offender of full age where there are no aggravating or mitigating features is 2 years and 6 months’ imprisonment.

11.Mr Wong refers to the fact nothing was stolen.  The fact the defendant had not stolen anything is not in my view a mitigating factor.  The defendant was caught red handed[6].

12.Mr Wong submits the burglary was an isolated opportunistic incident and asks for a lower starting point of 21 months imprisonment[7]. In support Mr Wong refers the court to three sentencing cases in the District Court[8]. I have considered the Reasons for Sentence in each case, suffice to say that each case depends on its own facts and that in my view the sentences appear lenient. 

13.Whilst the burglary can be described as opportunistic in the sense that the entrance of the shop was unlocked, the defendant did not simply pass by an open door or vacant premises to steal food or items of little value[9]. 

14.I have viewed the CCTV footage which clearly shows the defendant taking the black cloth; the gloves, the scissors and the roll of plastic tape out of his rucksack and fixing the black cloth so as to cover the windows so he would not be seen from the outside.  Later the CCTV footage clearly shows the defendant taking the pickaxe out of his rucksack and trying to prize open one of the machines[10].

15.These are not in my view the actions of an opportunistic burglar.  These actions show a premeditated burglary.  Although the defendant did not break into the shop he equipped himself to commit the burglary which is, in my view, an aggravating factor[11].

Persistent offender

16.Whilst the defendant is to be sentenced for one offence of burglary only, I do not agree this is an isolated offence.  Mitigation that an offence is isolated is usually reserved for a defendant with a clear record. 

17.The defendant has appeared in court on 17 occasions amassing a total of 24 convictions, all for offences of dishonesty. The defendant last appeared in court on 31 July 2020 when he was sentenced in WKCC 2389/2020 to 6 months’ imprisonment.  The defendant is clearly a persistent offender in offences of dishonesty.

18.The defendant has one conviction for burglary in 2018 when he was sentenced in DCCC 378/2018 to 19 months’ imprisonment consecutive to the sentence the defendant was serving for offences of theft committed in 2013 and 2018. 

19.The Reasons for Sentence in DCCC 378/2018 reveal that the sentencing judge adopted a starting point of 2 years and 6 months which he enhanced by 6 months for the aggravating factors of a bad record and commission of the offence whilst on bail[12].

20.I have had the opportunity of reading the case papers in WKCC 2389/2020[13].  The theft was committed on 4 July 2020.  The defendant was placed on police bail to appear in court on 17 July 2020 but failed to appear.  A warrant for his arrest was issued.   The defendant was arrested for the present burglary on 30 July 2020 and appeared in court the next day when he was sentenced to 6 months’ imprisonment for the theft charge.  The present burglary was therefore committed whilst the defendant was on bail which is also an aggravating factor.

21.I am satisfied a total enhancement of 9 months’ imprisonment to 3 years and 3 months’ imprisonment for the three aggravating factors of being equipped to commit the burglary; being a persistent offender and committing the offence whilst on bail, is appropriate and is not disproportionate to the defendant’s culpability[14]. 

22.Giving the defendant full credit for his plea of guilty reduces the sentence to 2 years and 2 months’ imprisonment.

23.The defendant has now finished serving the sentence imposed in WKCC 2389/2020.  In my view the sentence was lenient.  If the defendant had still been serving sentence I would have ordered wholly consecutive sentences.

24.Whilst I am sympathetic to the fact the defendant has a young daughter who he has never seen, the daughter having been born while the defendant has been in custody, this unfortunate position has been brought about by the defendant’s repeated commission of offences. 

25.I find no grounds to reduce the sentence.  The defendant is convicted and sentenced to 2 years and 2 months’ imprisonment.