HKSAR v. Wong Chi King

DCCC 472/2020

[2021] HKDC 319

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 472 OF 2020

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REASONS FOR SENTENCE

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Background

1.Defendant pleaded guilty to a charge of burglary of non-domestic premises being a building under construction, ie construction site of The Open University of Hong Kong, Nos. 1-5 Sheung Shing Street, Ho Man Tin, Kowloon, and was so convicted.

Facts

2.On 14 April 2020 at around 0140 hours, a security guard at the construction site heard a large bang.  He then spotted one of the wooden partitions on the ground floor closing off the entrance of the construction site had been opened.

3.CCTV showed the defendant was on the footbridge on the 1st floor of the construction site.  She removed some plastic barriers thereat and reached an area where some tools and wires were stored.  Defendant tampered with those tools and wires.

4.The said security guard together with another security guard later saw the defendant at the footbridge on the 1st floor of the construction site.  The case was reported to the police.

5.Defendant was not an employee of the construction site.  She was later arrested by police for attempted theft at the construction site.

6.In the subsequent cautioned record of interview, defendant admitted, inter alia, that, out of greed, she entered the construction site in order to steal electric wires but she was intercepted by the two security guards and that she kicked open the wooden door on the ground floor.

7.At all material times, she entered as a trespasser of part of a building, ie the 1st floor of the construction site, with the intention to steal there.

Criminal record

8.Defendant has 14 previous records involving 16 previous convictions of which 9 were related to dishonesty, 8 of which are theft convictions.

Mitigation

9.Defendant is aged 44.  She was born in Hong Kong and had received education up to Form 4.  She was unemployed since year 2010 and has been receiving Comprehensive Social Security Assistance of $4,300 per month.

10.Defence counsel said that defendant’s mother who lived alone is now aged 66 and is suffering from heart problem. 

11.In mitigation, defendant wrote to this court a letter expressing her deep remorse for the commission of the offence and said that she promised not to reoffend and to find a job to contribute to the society.  She asked that she be dealt with leniently so that she could return to her mother and to turn a new leaf in life.

12.Defence counsel also urged this court to adopt a lower sentencing starting point of 27 months in this case as the defendant only committed the offence in an amateurish way and she did not take any tools with her when committing the crime.  It was said that she just kicked open the door.  He further says that this was an opportunistic theft.

13.It was further submitted that the defendant abandoned the plan to steal after gaining access to the 1st floor of the premises and that she would have left without stealing if she was not intercepted by security guards.  Of course, this court has indicated in court that this piece of submission is not accepted by the court after viewing the CCTV tape in question.

14.Defence counsel also urged this court not to enhance the sentencing starting point by reason of defendant’s numerous previous convictions of theft.

15.He also asked this court to afford defendant one-third sentencing discount by reason of her guilty plea.

Discussion

16.In passing sentence, this court has fully considered all that was said on behalf of the defendant.  This court accepts that there was no previous conviction of burglary and this court would not enhance the sentence starting point by reason of her previous convictions of theft. 

17.It is well established that the appropriate sentencing starting point for burglary of non-domestic premises in the absence of aggravating or extremely strong mitigation reasons is that of 2½ years’ imprisonment[1].

18.The defendant in the present case acted alone.  No tools were used in breaking open the access to the premises.  In fact, she did not bring any tool in the commission of the offence.  There is total absence of sophistication in commission of the crime.

19.This court, however, does not accept the submission, as earlier said, that had the defendant not been intercepted she would have left without stealing. 

20.It is a case where she had entered the premises and then removed some plastic barriers and also reached the area where the tools and wires were stored. 

21.In the CCTV tape covering what she had done during that few minutes’ time, she had been tampering with those tools and wires in the area and she only stood up when she was approached by the two security guards who found her.  In fact, in the video recorded interview she admitted going to the site to steal some wires.

22.Defence counsel had referred this court to the case of HKSAR v Khan Asif CACC 83/2009.  The defendant in that case trespassed the place just by popping his head in through the window.  He then descended and left. 

23.The facts of the present case, however, is completely different.  This court does not therefore find that other case useful here.

24.According to the security guards, one of the wooden partitions on the ground floor closing off the entrance had been opened.  Further, the defendant had access to the construction site by removing the plastic barriers.  This court does not find the case falling within theft or opportunistic burglary scenario as referred to in the HKSAR v Chau Man Ying CACC 439/2011.

25.It is said also in the Khan Asif case referred to me by defence counsel that the court should not depart from the sentence starting point of 2½ years’ imprisonment simply because no property was stolen. 

26.On the other hand, this court noted that in this case there is, as said earlier, no level of sophistication and not planning was involved.  And for this reason, this court is willing to adjust the sentence starting point to 2 years’ imprisonment.

27.This court also considered all mitigation done on behalf of the defendant and find the most useful mitigating factor is that of her guilty plea of which she is entitled to the full one-third sentencing discount.  The defendant is sentenced to 16 months’ imprisonment.

28.This is the defendant’s 15^th criminal record.  Whilst this court has reservation as to the defendant’s determination to start afresh, the defendant is strongly advised to seek help to quit her drug addiction habit, to find a decent job and be a good daughter.  This court warns the defendant that should she commit further offences, she would expect to face longer terms of imprisonment in the future and that therefore she should take this chance and start afresh.