HKSAR v. Kan Ming-cheong

DCCC 527/2021

[2021] HKDC 1074

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 527 OF 2021

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Reasons for Sentence

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1.The defendant has pleaded guilty to a single charge of burglary. The particulars of offence show this occurred on 2 April 2021 at premises described as a warehouse in Yuen Long and the defendant is said to have attempted to steal inside that warehouse.

2.The Admitted Facts show that the warehouse belongs to a company called Billion Rising Building Materials.  It was a 5,000 square-foot warehouse and was used for storing construction materials.  It was enclosed by metal sheets at the front door and the backdoor.  The backdoor was normally kept locked and there was a table near the backdoor for the employees to place their belongings before proceeding to work near the front-door area. 

3.The premises was in operation on 2 April 2021. The two prosecution witnesses had gone to work there.  One of them had placed a shoulder bag on the table near the backdoor.  The backdoor was unlocked in the afternoon at about 2.25 and left ajar.  It would appear that the defendant then entered the premises, took hold of the first prosecution witness’ bag and rummaged through it.  Another witness, that was the second prosecution witness, called out and stopped the defendant doing that.  Nothing was taken.  The police were called and the defendant was, at that time slightly after about 3.30 pm, arrested for attempted theft. 

4.The defendant said that he had gone there to steal because he had no money for food.  The burglary was in fact captured on the CCTV camera. 

5.The defendant in a cautioned interview gave us a more detailed explanation.  He said he had originally gone to that area looking for advertisements for work.  He had seen the backdoor of the warehouse was open, went in to take a look, saw the bag on the table, wanted to see if there was any money inside but he could not find any.  Then he was arrested by the police.  You can see from the facts it is a straightforward case of a walk-in-type burglary. 

6.The defendant himself is 40 years old, born inside China.  We can see from the antecedents that he was last discharged from prison on 7 August 2021 and in fact appeared to have been sentenced to a term of imprisonment in May 2021 which would be shortly after this offence was committed.  Defendant has in fact nine previous appearances in court.  One of those is for attempted burglary in 2017 for which he was sentenced to 16 months’ imprisonment.  He has other convictions for offences such as theft, possession of dangerous drug and going equipped for stealing.  So the defendant does have a record of offences of dishonesty and theft. 

7.In mitigation, I am told the defendant has been married and has had two children but is now divorced.  He worked as a clerk in the tourist industry and he was made unemployed as a result of the pandemic, was living alone and appeared to have no money and was unemployed. 

8.Turning to the approach to sentence, there are clear guidelines for the burglaries of non-domestic premises.  Helpfully, the defence has shown me the case of R v Wong Man [1993] 1 HKC 80 and also the Secretary for Justice v Tsang Hon Yin [2004] HKCU 1497 where the starting point in the case of a burglary of non-domestic premises is 2 years and 6 months’ imprisonment and that would be for a person of clear record who pleaded not guilty.  It is clearly the case this is a non‑domestic premises, being a warehouse. 

9.The defence has also referred the court to another case called HKSAR v Cheung To Ming [2006] 2 HKC 416 where a lower starting point of 18 months’ imprisonment was adopted for an opportunistic burglary which is akin to a sneak thief.  The defendant walked into an open premises in that case, stole the contents of two noodle packets he found on the kitchen table, cooked and consumed them before leaving. 

10.I note in this case the defendant was originally arrested for attempted theft and the facts of the case show this to be an opportunistic walk-in type of burglary.  The premises were open and the defendant, in fact, made away with nothing as a result of this attempted theft. 

11.It is, in my view, a case where the normal starting point can be departed from to reflect the particular and peculiar circumstances of this burglary offence. 

12.The starting point I will adopt is one of 18 months’ imprisonment.  That will be enhanced by a figure of 3 months’ imprisonment to reflect the aggravating factor of the defendant’s previous conviction for this offence. 

13.There are no other aggravating factors present in this case.  That leads to an overall starting point of 21 months’ imprisonment.  The defendant is entitled of course to a one-third deduction from that sentence due to his plea of guilty.  That leads to a final sentence of 14 months’ imprisonment.  That will be the sentence I will impose for this offence. 

(T Casewell) District Judge