HKSAR v. So Wai Ki

DCCC 1104/2021

[2022] HKDC 500

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 1104 OF 2021

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REASONS FOR SENTENCE

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1.The defendant (D)  pleaded guilty to 1 count of Burglary, contrary to section 11(1)(b)  and (4)  of the Theft Ordinance, Cap 210. Particulars of Offence alleged that on 5 October 2021, having entered as a trespasser part of a building known as Front Portion, 5^th Floor, No 106 Fuk Wa Street, Sham Shui Po, Kowloon, stole therein 1 vase, 12 ornaments, 1 cutting machine, 1 hydraulic drill and 1 jigsaw.

Facts of case

2.The Summary of Facts admitted by D shows that the premises concerned, viz, Front Portion, 5^th Floor, No 106 Fuk Wa Street (the premises)  was a residential unit.  It was left vacant since November 2020 but PW1, the son of the owner, would visit the premises every 2 weeks to check it.  CCTV was installed in the living room and outside the premises.

3.PW1 last checked the premises on 25 September 2021 when he found the door and iron gate were properly locked.  When he returned at 11:45 am on 7 October 2021 he found the lock of the iron gate missing and the door had been prized open, with signs of ransacking inside.  Upon checking, the properties listed in the Particulars of Charge were found missing.

4.CCTV showed that a male (later identified to be D)  broke into the premises between 3:19 to 3:41 pm on 5 October 2021 and stole the properties.  PW1 reported the case to the police.

5.At 8:15 pm on 7 October 2021 D was arrested at Apliu Street where he operated a temporary stall.  6 items of ornaments were found inside a rucksack D was carrying and another 22 items of vases and ornaments were on display at D’s stall.  Of these items, PW1 identified 1 vase and 12 ornaments to be the properties stolen from the premises.

Defendant’s Backgrounds

6.D is 44 years old, born in HK on 14 February 1978.  He is single and resided alone.  He had received F.1 education and worked as a food deliveryman, earning about HK$4,500 per month.  D first transgressed the law in 1992 when he was only 14 years old.  For an offence of “Theft”, he was sentenced to Probation for 12 months.  He became involved in DD and not surprisingly continued to commit crimes.  He now has a total of 19 previous convictions, mostly DD related and 4 for 6 counts of Burglary or Attempted Burglary.  He has been sent to DATC once and in and out of prison for all of his life so far.

Mitigation

7.Mr Chan, for D, submitted in mitigation that D is remorseful and has pleaded guilty.  Since the premises had been left vacant since November 2020 with no one residing there, he urged me to treat the premises as a non-domestic premises and adopt 2 ½ years as the starting point, instead of 3 years for domestic premises.  He cited a District Court case HKSAR v Amjed Aji, DCCC 433/2013 in support of his proposition.  He also submitted that according to PW1, the value of the properties involved was about HK$8,000 and most of them were recovered.  He asked for leniency on behalf of D.

Sentence

8.It is well established that Burglary of domestic premises warrants a starting point of 3 years’ imprisonment.  It is often the case that burglaries were committed on residential units when the occupants were temporarily away.  That would not make the premises non-residential.  In the case of Amjed Ali cited by Mr Chan, one premises was described as a storage facility while the other had been unoccupied for over 10 years.  I was informed that the premises in the present case was on the 5^th Floor of a 9 story residential building.  Although it was unoccupied for about 11 months before the offence, it was well secured with CCTV installed.  The owner also visited the premises twice a month.  I do not agree that the premises in the present case should be treated as non-domestic premises.

9.In HKSAR v Cheng Wai Kai, unrep, CACC 338/2007, the CA listed 6 aggravating circumstances for burglary cases (paragraph 15).  The value of the properties involved in this case was not high, and most of them have been recovered.  There was no evidence supporting existence of these aggravating circumstances in the present case except D’s previous convictions.

10.D has 6 previous similar convictions.  This is an aggravating factor which warrants an upward adjustment of the starting point.

11.Having taken all relevant factors and the mitigations put forward by Mr Chan on behalf of D into consideration, I adopt 3 years and 3 months as the starting point.  1/3 discount will be given for D’s timely guilty plea.  I see no other mitigating factors.  For the offence of Burglary D is facing, he is sentenced to 2 years and 2 months’ imprisonment.