HKSAR v. Fung Ka Ki

DCCC 378/2020

[2021] HKDC 410

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 378 OF 2020

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REASONS FOR SENTENCE

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1.Defendant is convicted on his own plea and agreement to amended summary of facts to a charge of burglary, contrary to section 11(1)(b) and (4) of the Theft Ordinance, Cap 210.

Facts

2.PW1 owned the 2nd Floor, No. 201 Reclamation Street, Yau Ma Tei, Kowloon (“the Flat”).  The Flat was subdivided into 8 rooms and PW1 himself resided in Room 2 while the other rooms were rented to other tenants.  Room 8 was used for storage by a property management company and the door to Room 8 was locked by a padlock.

3.Around 12 am on 21 March 2020, PW1 was inside Room 2 and he heard multiple knockings on the door of the adjacent Room 1.  He then went out of his room and saw the Flat’s main door half-open.  He opened the Flat’s main door and saw the defendant standing right outside the Flat.  He then questioned defendant as to why he was knocking at the door.  The defendant denied having knocked at the door and left immediately. 

4.Feeling suspicious, PW1 then checked his CCTV camera that was installed outside his room and found that at 11:42 pm on 20 March 2020, a female tenant opened the Flat’s main door and defendant followed her into the Flat.  At 11:58 pm on the same day, defendant stood in front of Room 8 and took out a tool from his trouser back pocket.  He then unlocked the padlock to Room 8’s door while holding the padlock with a tissue paper.  He then inserted his head into Room 8 for a short while but he did not step into the room.  He then closed Room 8’s door and locked the padlock.  Then he knocked at Room 1 and cleaned its door lock with a tissue paper.  He then left the Flat.

5.Around 12 am on the next day, defendant slightly opened the Flat’s main door from the outside, inserted his hand through the main door and knocked at the door of Room 1.  PW1 then came out of Room 2 and questioned defendant who was standing outside the Flat.  Defendant left shortly afterwards.

6.No item inside Room 8 was damaged or lost. 

7.Defendant was later arrested on 18 April 2020.

Criminal record

8.Defendant has 19 previous criminal records, involving convictions of 29 charges.  Nearly all of these convictions were theft-related convictions.

Mitigation

9.Defendant is aged 41.  He was born in Hong Kong and received education up to Form 3 in Hong Kong.  He was married with a son of 18 years old but he lives separate from the defendant.  At the time of arrest, he was a casual worker at a construction site, earning about $600 per day.

10.Defence counsel conceded that 7 rooms of the Flat were used for residential purpose while Room 8 was used for a non-residential purpose. 

11.It is also conceded that the sentencing starting point for non-domestic premises burglary should be 30 months’ imprisonment[1] and that for domestic premises would be 36 months’ imprisonment. 

12.It was submitted by defence counsel that defendant engaged the services of a prostitute who then brought him into one of the rooms of the Flat, and later when he exited the room, he then committed the present offence.  It was said that the defendant is an opportunistic burglar, he did not carry any tools and that the offence was not a premeditated one. 

13.Defence counsel also said that when the defendant walked past Room 8, he took out his home key and used it to open the door of Room 8 out of momentary greed.  It was said also that he only peeped into Room 8 without stepping into the room and he did not steal anything. 

14.It was also said that though the defendant did knock the door of Room 1, there is no evidence to show that he has any intention to burgle Room 1.

15.Defence counsel also submitted that the case involved no financial loss to victims and that the defendant did not cause harm or fear to anyone.

16.Defence counsel also referred this court to several authorities.  He submitted that the defence case here is less serious than that of the case of HKSAR v Tsang Chun Yin [2018] 1 HKLRD 1128, as there was no evidence of ransacking in our case here, and the court adopted a sentencing starting point of 2 years in the Tsang case.

17.He also referred this court to the case of HKSAR v Khan Asif CACC 83/2009, in which the court adopted a sentencing starting point of 18 months’ imprisonment for the defendant who had made minimal entry to a shop by popping his head through a window into the premises for several seconds before he left the premises on his own accord.

18.It is further submitted that defendant now is deeply remorseful and, by reason of his guilty plea, he should be entitled to the sentencing discount.

19.It is further submitted to this court that defendant has no similar burglary convictions in the past.

Discussion

20.The sentencing starting point for burglary of non-domestic and residential premises are well established. 

21.Firstly, in relation to Room 8 incident, this court accepts that the same was a non-domestic premises and that the defendant merely made minimal entry into the room and he abandoned further entering the room later on his own accord. 

22.The case looks similar to the case of Khan Asif scenario. However, in the present case here, according to the agreed facts, the defendant did use a tool to gain entry to Room 8, which is fitted with a lock at the time.

23.It is said by defence counsel that he used his home key to open the door of this Room 8, which, as this court has said in open court, this court is not willing to accept the contention.  This court has also indicated that this court would be willing to conduct a Newton hearing on the issue and defence counsel submitted that he would therefore withdraw this contention.

24.Now, coming to the case of Tsang Chun Yin referred to this court, the defendant there had burgled the student hostel rooms when these doors were either unlocked or when the key card for these rooms was available hanging outside the room.  Defendant there was also a person of good character. Defendant there was sentenced to a total of 18 months for the 3 charges on his own plea.

25.Again, in the case of HKSAR v Kwok Wing Kam CACC 394/2010, HKSAR v Law Tin Yam CACC 258/2010, and HKSAR v Cheung To Ming [2006] 2 HKLRD 259, these places were not locked at the material times, whereas, in our case here, Room 8 and Room 1 were both locked at the time. 

26.Furthermore, the defendant here is obviously a persistent offender of theft-related charges since the year 1993.  This is an aggravating factor in sentencing.

27.Taking into consideration of the circumstances of the incident in relation to Room 8, the appropriate sentencing starting point for this incident alone would be 20 months and the same would be enhanced by 4 months, by reason of his being a persistent offender, to 24 months’ imprisonment.

28.Then, coming to the Room 1 incident, this is a residential premises. From what was being caught on the CCTV, the defendant’s acts no doubt was performed to check whether Room 1 was occupied and the only reason for so doing is for the purpose of burgling the Room 1 when the same was not occupied.  This is an irresistible inference from the acts.

29.The level of sophistication in the commission of the present offence is not high and the court is willing to accept that there is not much planning ahead.  Defendant here acted alone.  In the Room 8 incident, he had abandoned furthering his acts on his own accord, whereas in Room 1 incident, he had abandoned furthering his acts only after PW1 had intervened. 

30.The sentencing starting point for the Room 1 acts, after considering the circumstances, is a starting point of 2 years and 2 months’ imprisonment.  The same is again enhanced by 4 months, by reason of the defendant’s aggravating culpability as a persistent offender, to 2 years and 6 months imprisonment.

31.Taking into consideration of the culpability of the defendant in the whole case, this court considers that the appropriate sentencing starting point shall remain at 2 years and 6 months imprisonment. 

32.Defendant has pleaded guilty and is therefore entitled to one-third sentencing discount.  He is therefore sentenced to 20 months’ imprisonment for this offence.