HKSAR v. Chan Chow Sing

DCCC 1040/2021

[2022] HKDC 990

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 1040 OF 2021

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REASONS FOR SENTENCE

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1.Mr Chan pleaded guilty before me to two charges on a Charge Sheet as follows.

2.Charge 1 is Attempted burglary, contrary to section 11(1)(a)  and (4)  of the Theft Ordinance, Cap 210, and section 159G of the Crimes Ordinance, Cap 200.  Particulars are that he, on 13 June 2021, in Hong Kong, attempted to enter as a trespasser part of a building known as “Regus”, 16^th Floor, “T.O.P This is our place”, No 700 Nathan Road, Mong Kok, Kowloon, with intent to steal therein.

3.Charge 2 is Burglary, contrary to section 11(1)(b)  and (4)  of the Theft Ordinance, Cap 210.  Particulars are that he, on 13 June 2021, in Hong Kong, having entered as a trespasser part of a building known as “My Dream Education Centre”, 2^nd Floor, Oxford Commercial Building, No 494 Nathan Road, Yau Ma Tei, Kowloon, stole therein two laptop computers.

FACTS ADMITTED BY MR CHAN

Charge 1

4.“Regus” was a company that provided shared working spaces to tenants. It occupied the 16^th and 17^th Floors of a building in Mong Kok.  In particular, it occupied exclusively the 16^th Floor. Its opening hours are 8:30 am to 6 pm on weekdays only (excluding public holidays).  The 16^th Floor had a glass door at each of the two ends of the lift lobby.  One of the glass doors faced the reception (“the reception door”); the other is for tenants (“the tenant’s door”)  to gain access to the unit by keying in a password.  The doors to the shared offices are locked electronically.  A visitor would have to go through the reception door before he or she could go into one of the shared offices.  The reception was unmanned on Saturdays, Sundays and public holidays and the reception door was locked but tenants could still gain access to their respective shared offices by keying in their password to the tenant’s door.

5.On 13 June 2021, a Sunday, at about 12:30 pm, Mr Chan visited the building.  After exiting the lift on the 16^th Floor, he headed straight towards the reception door.  He tried to pull open the reception door but it was locked.  He then stared into the office from the outside for a while before turning around and heading towards the tenant’s door located at the other end of the lift lobby.

6.Mr Chan then tried pulling open the tenant’s door which was also locked.  He pressed the password pad but he could not gain access.  He turned back to the reception door and again stared into the reception before leaving by taking the lift.

Charge 2

7.“My Dream Education Centre” (“the Centre”)  was located on the 2^nd Floor of a building in Yau Ma Tei.  Its opening hours were from 10 am to 11:30 pm daily.  There were one main entrance and two rear entrances to the premises which were not locked during opening hours.  One of the rear entrances led to a back alley on the Ground Floor.  The other rear entrance led to the Ground Floor lobby of the building (“the lobby rear entrance”).

8.On 13 June 2021, at about 2 pm, Mr Chan entered the Centre via the lobby rear entrance.  He then stole a silver laptop computer (valued at $7,680)  from Classroom 3 and a white laptop computer (valued at around $5,000)  from Classroom 5 before leaving the Centre.

9.On discovery of the thefts, a police report was made.

ARREST

10.On 25 June 2021, Mr Chan was arrested outside his home for the Yau Ma Tei burglary. Under caution, Mr Chan admitted stealing the two laptops and that he had already sold them for $2,000 in Sham Shui Po.

11.On the same day, he stated in a cautioned VRI as follows:-

(a)  In relation to the incident subject of Charge 1, he wandered on the 16^th Floor of the building on 13 June 2021; and

(b)  In relation to the incident subject of Charge 2, he went past the classrooms in the Centre and saw two laptops; he stole them out of greed.

12.Mr Chan now admits he attempted to enter “Regus” as a trespasser with intent to steal therein.

CRIMINAL RECORD

13.Mr Chan has 31 previous convictions 12 of which were dishonesty-related, the last two being convictions for burglary both recorded in 2012.

ANTECEDENTS

14.Mr Chan is aged 52 (51 at the time of the offences), educated to primary school level, had worked as a transportation worker.  He was last discharged from a correctional institution in April 2013.  He is married but lived away from his wife and daughter (8)  in TST.

MITIGATION

15.Mr Chau Hing Pang of counsel assigned by the Director of Legal Aid mitigated on behalf of Mr Chan.  The following is a summary of the mitigation submissions.

16.Mr Chan’s first marriage resulted in a boy born in 2004 whose custody went to the mother on divorce in 2006; Mr Chan had to pay maintenance of $2,000 per month to the boy.

17.Mr Chan re-married in 2011.  The family lived in Shenzhen with a baby girl born in 2014.

18.After his release from prison for his last convictions, Mr Chan engaged himself in parallel goods delivery between Sheung Shui and Shenzhen, earning about $10,000 to $20,000 a month.  Mr Chan was the sole bread winner of the family; he also had to bear the maintenance to his son.

19.The social unrest in 2019, and the pandemic in 2020 meant that Mr Chan had no work.  The family had to rely on their small savings.

20.In May 2021, Mr Chan came back to Hong Kong with only $4,000 on him.  He rented a place in Chungking Mansions at a daily rent of $100 and he was going to apply for CSSA.  He also applied for food coupons from a religious NGO.

21.On the date of offences, he went to 16/F of the Mong Kok building, intending to look for a finance company for seeking loans.  Seeing there were no people around, greed took over him; so he tried pulling the handle of the glass door and pressed the password pad, hoping to gain entry.

22.Later, he went past the Yau Ma Tei building, and entered the Centre on the 2^nd Floor.  Seeing no people there, he took away two laptop computers (total value at $12,680)  and sold them for $2,000 at Sham Shui Po.

23.After being arrested, he frankly confessed to the police.

24.The sentence for burglary at non-residential premises could attract a starting point of 30 months’ imprisonment for a fresh offender.

25.Although Mr Chan is not a fresh offender, he has been on the decent side of life for 10 years.

26.It was submitted that during the present offences, no one was hurt and no property was damaged; and Mr Chan did not use any apparatuses or equipment to commit the crimes; that Mr Chan was in fact an opportunist.

27.The court was urged to give Mr Chan the 1/3 discount and to impose concurrent sentences.

28.Mr Chau submitted on behalf of Mr Chan a mitigation letter written by Mr Chan himself.  The contents generally are that because of the covid pandemic, he could not find a job resulting in no income to pay for living expenses and for upkeep of his daughter; he used a stupid method to solve his financial difficulty; he is regretful and pleaded with the court for leniency so he may be a new person and reunion with his family early.

SENTENCE

29.I have regard to the usual starting point for burglary of non-domestic premises.

30.Mr Chan appears to be an opportunistic burglar for both offences in which no property had been damaged; I will therefore adopt a lower starting point for each.  However, this decrease is offset by an increase due to Mr Chan being a recidivist.  In the premises, no change will be made to the usual starting point.

31.Except for the pleas of guilty, there is no worthy mitigating factor to justify a reduction in the sentences.

(Mr Chan, please stand)

32.For Charge 1, I adopt a starting point of 2½ years and because of his timely plea, the sentence will be reduced by 1/3 to 20 months’ imprisonment.

33.For Charge 2, I also adopt a starting point of 2½ years and this is reduced to 20 months’ imprisonment for the same reason.

34.Although the two offences took place on the same day, they were committed at two different places; one cannot be described as concomitant to the other.  Nonetheless, especially with the principle of totality in mind, I will impose partially concurrent sentences to reflect the overall criminality without being too harsh on Mr Chan.

35.I order that 7 months of the sentence on Charge 2 do run consecutively to the sentence on Charge 1; the aggregate sentence is therefore 27 months’ imprisonment.