HKSAR v. Ho Chun Kit

DCCC 731/2021

[2021] HKDC 1502

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 731 OF 2021

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REASONS FOR SENTENCE

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1.The defendant pleaded guilty to a charge of Burglary, contrary to section 11(1)(a)  and (4)  of the Theft Ordinance, Cap 210.

Summary of facts

2.PW1 and his wife lived on 1^st Floor of a building in Shau Kei Wan.

3.At 12:50 am on 28 February 2021, PW1 was woken up by some noise and saw the defendant climbing through one of the windows with the upper half of his body protruding inside the flat.  PW1 shouted at the defendant who immediately retreated from the flat through the window jumped onto the ground and fled.  The defendant left an empty blue rucksack and a Nike sports shoe by the windows inside the flat.

4.At 1:10 am, the police saw the defendant holding one shoe in his hand, limping across the street.  At 1:30 am, the defendant was arrested for “Burglary” and admitted under caution that he had climbed up to the 1^st Floor and he fled the scene.  The defendant admitted under caution he had left his rucksack and other shoe inside the flat. PW1 confirmed that nothing was missing but the metal mesh (valued at $20)  of the window was damaged.

Criminal record

5.The defendant has 11 previous criminal records since 1990 to 2000 with a number of different types of offences, such as AOABH, common assault, possession of dangerous drugs, S33 possession of offensive weapon, theft and theft from vehicle.

6.His last conviction was in November 2020 for a burglary charge, he was sentenced to 14 months’ imprisonments for taking $1,000 cash from a grocery store.  He was released on 4 February 2021.

Mitigation

7.The defendant is 45 years old.  The defendant used to live with his mother and his 11 years old daughter before his remand in custody.

8.The defendant lived in Scotland between 2000 to 2017 and worked as a cook in a take away shop.  In 2017, he returned to Hong Kong after a dispute with his girlfriend’s mother.

9.From that relationship, the defendant has 2 young children aged 5 and 8 respectively.

10.After his return to Hong Kong, he worked in a seafood restaurant earning about $14,000.  He quitted his job in 2019, he only made $3,000 per month by taking up part-time job.

11.The defendant is unhappy with his life as he has drinking problem.  He knows that he has disappointed his family.  At the material time, he drunk some beers and wanted to make some quick money by committing the present offence.

12.He was found out by the residents in the flat and jumped off to the ground resulting from a fracture to his leg.  Today, I am told that he is now totally recovered.

13.The defendant is remorseful for his wrongdoing.  There is no aggravating factor as stated in HKSAR v Cheng Wai Kai CACC 338 and 339/2007.

14.The defendant accepted that he has a bad criminal record and he committed the present offence soon after his discharge from prison.

15.The defence refers to the HKSAR v Chung Tin Fook [2020] HKDC 720 that the court enhanced the starting point by 3 months.

Sentence

16.It is well established that domestic burglary attracted a 3 years’ sentence.

17.In the present case, PW1 did not suffer any loss except that the defendant damaged the window mesh which costs about $20.  He acted alone at the material time.

18.As to his criminal record, the defendant had managed to stay away from committing any offences for a period of 20 years, that was between 2000 to 2020.  It was partly due to the fact that he lived in Scotland for a substantial period of time.  Although the defendant returned to Hong Kong in 2017, he could not keep up with his good record.  He committed an offence and was sentenced in November, 2020 for one count of burglary.  He committed the present offence only 24 days after his release from prison.  This is an aggravating factor.

19.As stated in HKSAR v Luo GuiYang CACC 44/2021 that the offence was committed in a residential dwelling and in the early hour of the morning when PW1 and his family were at home, that is an aggravating factor.

20.That subjected the residents inside the flat to a certain degree of fear as a man’s home is his castle.  No one would expect an intruder/trespasser to come in without invitation.

21.In view of the above two identified aggravating factors, namely:-

(a)  Committed the offence 24 days after discharge from prison;

(b)  Committed the offence while the residents were at home in the early hours of the morning.

22.I enhanced 6 months imprisonment to the notional 3 years starting points.  It arrives at a total of 3 years and 6 months, reduced to 2 years and 4 months after 1/3 discount.

23.I order the defendant to serve a term of 2 years and 4 months’ imprisonment.