HKSAR v. Fong Yan Kit

DCCC 537/2021

[2022] HKDC 115

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 537 OF 2021

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REASONS FOR SENTENCE

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1.The prosecution amended charge 3 from attempted burglary to burglary without objection from the defence.

2.The defendant pleaded guilty to Charge 3.  While Charges 1 and 2 (both are burglary charges)  to be left on court’s file.  This court ordered both charges not to be proceeded with without the leave of the court.

3.On 13^th February, 2021, at around noon time, PW3 was inside the storeroom which was located behind the cashier the counter.  PW3 saw the defendant approached the cashier counter and reached for the wooden drawer under the cashier register. 

4.PW3 immediately shouted “someone is stealing, catch the thief “.  That alerted her staff PW4.

5.The defendant then fled from the shop empty handed.

6.With the assistance of a passer-by, PW4 brought the defendant back to the shop and called the police.

7.The defendant escaped and was intercepted again.  Police arrived and arrested the defendant for “Attempted burglary.”

8.The defendant’s action in the shop was all captured by the CCTV.

CRIMINAL RECORD

9.The defendant has a long list of criminal record since 1989, he has been convicted on 18 occasions with 33 charges, 23 are burglary charges, he was discharged from prison on 7^th December, 2020.

Mitigation

10.The defendant is aged 49, he has separated from his wife.  He used to earn about $9,000 per month as a casual worker.  At the time of arrest, he has been unemployed.

SENTENCE

11.It is well settled that for non-domestic premises burglary, the starting point is one of 2 years 6 months.

12.The defence said that the defendant is an opportunistic burglar.  According to the case of HKSAR v Sim Ka Wing CACC 450/2000 that a lower starting point can be considered.

13.In view of the fact that it was a shop, the defendant committed the offence while the shop was in business.  I accepted that it was not premediated and planned.  When the defendant was found by PW1 to steal from the cashier counter, the defendant fled from the scene.

14.To this extend, I adopted a starting point of 2 years.

15.In the present case, there is no doubt that the defendant is persistent offender, he committed the offence soon after his release from prison in December, 2020.

16.The previous sentence obviously had no deterrence effect on the defendant. Nonetheless, I shall enhance the sentence by 9 months.

17.It comes to 2 years and 9 months.  Given 1/3 discount, reduces to 22 months imprisonment.