HKSAR v. Chan Wing Chung

DCCC 498/2021

[2021] HKDC 1483

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 498 OF 2021

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REASONS FOR SENTENCE

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1.The 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.

2.Madam Lin, together with her husband, son and daughter, live at the room in question.  The room is one of the 3 rooms in a multi-cubic apartment.  At 6:10 am on 11 March 2021, Madam Lin’s husband, left home for work and he left the doors of the room in the multi-cubic apartment ajar as usual.  At 7:15 am, Madam Lin woke up and saw the defendant carrying her handbag standing beside her bed.  She shouted for help, and the defendant left the room and then the multi-cubic apartment.

3.The handbag containing 1 Hong Kong identity card, 1 home visit permit, 1 Octopus card, 1 ATM card, cash of HK$2,040, 2 red packets contained a total sum of HK$100, 1 red packet containing RMB ¥20 and 1 red packet.

4.The son hearing the mother’s shout and seeing the defendant carrying his mother’s handbag gave chase.  He later intercepted the defendant.  The defendant asked the son not to chase after him and not to report the case to the police. He then returned the handbag to the son and entered a building.

5.The son reported the case to the police.  Upon arrival of the police, the son entered the building with the police and located the defendant.  The defendant was arrested and cautioned.  Under caution, he admitted seeing the door of the room was unlocked and he went inside and stole the handbag and the other items.

6.Upon check, Madam Lin confirmed that the stolen properties were all inside the handbag and there was no damage to the handbag.  She therefore did not suffer any loss.

7.At the material times, the defendant entered as a trespasser to the room in question and stole the things therein.

Criminal Record

8.The defendant has 17 previous criminal records, involving convictions of 44 charges under the Theft Ordinance, of which, 28 are burglary convictions.

Mitigation

9.The defendant is aged 52.  He is a Hong Kong resident and living together with his wife and a 15-year-old daughter in a public housing estate.

10.He last worked as a casual decoration worker earning about $15,000 per month and has been unemployed since December 2020.

11.The defendant’s counsel submitted that the amount of property involved was of relatively low value and the victim has not actually sustained any monetary loss.  She also submitted that the offence was opportunistic and not premeditated, and that the defendant only happened to see the doors ajar to the room and has therefore entered to steal.  She also submitted that the defendant well understands the usual sentence for domestic burglary is 3 years’ imprisonment, and that with his criminal record, mitigating factor is limited other than his early plea of guilty, of which he is entitled to sentencing discount.

Discussion

12.According to section 11(4)  of the Theft Ordinance, any person who commits burglary shall be guilty of an offence and shall be liable on conviction upon indictment to imprisonment for 14 years.

13.The room in question is a domestic premises.  The Court of Appeal in the case of R v Chan Yui Man, CACC 36/1988, laid down sentencing guideline for burglary of domestic premises.  It was held that 3 years’ imprisonment was the proper starting point for a first offender of full age for burglary in domestic premises.  It is also subject to adjustment upon any aggravating or mitigating factor.

14.In this case, the defendant acted alone.  There is no evidence of forceful entry or that tools or violence was involved in getting access to the room in question.  It was agreed that the doors to the room and the multi-cubic apartment was left ajar at the material times.  The mode of burglary was not sophisticated, nor was there any evidence of use of machinery.  There is not much planning involved.

15.This court noted that the defendant had, over the last 39 years, 44 theft-related convictions.  The last one being in January 2018, for which he was sentenced to 2 years and 6 months’ imprisonment.  Clearly, he is a persistent offender and his culpability in the case is aggravated.

16.It has been said that in the 3-year sentencing starting point, a certain level of planning and sophistication has been built in, which is absent in this case.  This court also noted that the amount of stolen properties are of low value and have been recovered.  However, it is also noted that the defendant committed the offence at 7:15 am, when people are still expected to be inside the room.  And as a matter of fact, both Madam Lin and her son were still sleeping inside the room and that he proceeded with the offence despite knowing their presence, at least the presence of Madam Lin.

17.In the circumstances, the appropriate sentencing starting point would still remain at 3 years in this case.  And coupled with the fact that the same is aggravated by reason of the defendant being a persistent offender, the same is aggravated by 6 months to 3 years and 6 months’ imprisonment.

18.This court has considered all mitigation submitted on behalf of the defendant and finds the most valid mitigating ground being his timely plea, of which he is entitled to full one-third sentencing discount.

19.Accordingly, the defendant is sentenced to 2 years and 4 months’ imprisonment for this charge.