HKSAR v. Ng Wai Kit

DCCC 1053/2020

[2021] HKDC 1072

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 1053 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 which sets out in the particulars of offence that on 30 July 2020, the defendant with another person known as Moby entered as a trespasser part of a building at Kaiser Estate in Hunghom and stole a bottle of red wine, an air purifier, a laptop computer, an iPad mini and one iPhone.

2.The premises, I am told, are classified as a non-domestic premises.  There situated a flat in Man Lok Street in Kaiser Estate in Hunghom, consisting of an entrance door and a back door leading to an uncovered balcony.  The room, which is Room 8, was located nearest to the entrance door.

3.The premises were secured at around 8 pm on 27 July 2020 and found to have been burgled on 30 July 2020 where entrance or entry had occurred by prying a window with some damage to that and also damage to a CCTV camera.  A screwdriver and a crowbar which had probably been used to gain entry were also found.  The grand total value of items stolen was $14,400.  Those are the items set out in the particulars of offence. 

4.The defendant was in fact arrested after a review of the CCTV footage.  On arrest, he admitted burglary and said he had committed the offence with a person called Moby.  He said the entry had been obtained by prying the window, and the defendant himself had helped by moving the stolen property.

5.The defendant’s background is that he is now 49 years old.  He was married and now divorced.  He has a letter of support from his stepdaughter and has written a letter himself.

6.The defendant has a lengthy criminal record dating back to 1988 with a total of 26 appearances in court.  Of relevance are three convictions in respect of burglary.  Some are antiquity: 1996, sent to a drug addiction treatment centre; 1999, sentenced to 16 months’ imprisonment; and finally, in 2012, for attempt to burgle, was sentenced to 2 years’ imprisonment.  The defendant has a number of other convictions in respect of other offences of dishonesty and possession of dangerous drugs.

7.The defendant in mitigation had hoped to be able to pay restitution but, unfortunately, due to the failure of a friend to come through with the money, he was unable to do that but he does show a remorse and a desire to recompense the victims for the crime that was committed.

8.As far as the starting point for a non-domestic burglary is concerned, the guideline sentence is that the starting point for a non-domestic burglary after trial for a person of hitherto clear record will be one of 30 months’ imprisonment.  There are also guidelines set out that that sentence can be enhanced if there are further aggravating factors. 

9.I have identified two aggravating factors in respect of this offence.  Firstly, there is the defendant’s previous convictions for similar offences and, secondly, the fact that this was a joint-enterprise burglary.  I do take into account in determining the starting point the other factors set forward in mitigation: the burglary itself is not sophisticated; the crowbar and screwdriver appeared to be the means of entering; the value of the items at 14,400 is not substantial; the premises was empty, and the defendant assisted the police, under caution made an admission.

10.Unfortunately, today although the defendant does show remorse, he is not able to present any restitution which can enable some mitigation from the starting point for sentence.  I take a starting point for sentence which incorporates those two aggravating factors at 36 months’ imprisonment.  After the defendant’s plea of guilty is taken into account, a full one-third deduction is appropriate, leading to a final sentence of 24 months’ imprisonment for this offence.