HKSAR v. Ng Kwan Ki

DCCC 1127/2021

[2022] HKDC 1500

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 1127 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 Summary of Facts to a charge of burglary, contrary to section 11(1)(b)  and (4)  of the Theft Ordinance, Cap 210 (1^st charge)  and a charge of going equipped for stealing, contrary to section 27(1)  of the Theft Ordinance, Cap 210 (2^nd charge).

Facts

2.At the material times, PW1 resided on the 4^th floor and rooftop of No. 492 Reclamation Street, Mongkok, Kowloon, Hong Kong.  He stored his bicycle (valued at $200)  on the rooftop.  The rooftop was unlocked. There was no gate or door at the entrance of No. 492 Reclamation Street. 

3.At about 6:30 pm on 27 August 2021, when PW1 was in his flat on the 4^th floor, he heard some noise outside.  He opened the door and saw the defendant on the 4^th floor with PW1’s bicycle in his hands.  PW1 stopped the defendant and reported the case to the police.  The defendant was arrested and upon search, one spanner and two hex keys were found in his cross-body bag. 

Criminal Record

4.The defendant had 11 previous criminal records involving convictions of 12 charges, none of which is similar to the present charges, although he had a robbery conviction back in year 2001. 

Mitigation

5.The defendant was born in Hong Kong.  He is aged 38 and single.  His father died and his mother is in prison.  His relationship with siblings is not harmonious.  He had no fixed abode and would book hourly rooms in hotel when he had money.  He makes a living by being a scavenger, although he is also on CSSA receiving $2,500 per month. 

6.Defence counsel submitted that the rooftop in question was not locked, nor was the entrance to the building locked or fitted with a gate.  The defendant, however, admitted to possession of equipment fit for use in theft.  It was submitted that although the rooftop in question was part of PW1’s flat, it appeared to be mainly used for storage and PW1 was not physically present within the rooftop at the time of the offence. 

7.Defence counsel urged this court to adopt a lower sentencing starting point than 3 years’ imprisonment by reason that the rooftop is generally a common area of a residential building.  Although it is not in the present case, still it would not result in alarming the occupant. 

8.Defence counsel also urged this court to order that sentence for the 2^nd charge be totally or partially concurrent to the sentence of the 1^st charge. 

Discussion

9.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. 

10.The rooftop in question is part of a domestic premises, although the same is used mainly for storage and was unlocked at the time.  Though there was no one staying within the rooftop, the commission of the offence by the defendant did alarm PW1 within the 4^th floor residence. 

11.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. 

12.In this case, the defendant acted alone.  There is no dispute that the rooftop or the entrance to the building was not under lock and key at the time, and therefore no forcible entry nor was tools or violence involved in getting access to the rooftop in question.  Nevertheless, this court notes that at the time, the defendant was equipped with tools fit for burglary and was therefore prepared to use the same when the need arise. 

13.It has been said that in the 3 years’ sentencing starting point, a certain level of planning and sophistication has been built in, which is absent in this case. 

14.This court noted also that the amount of stolen property is of low value and has been recovered.  However, it is noted that the defendant committed the offence at 6:30 pm when people are expected to be within or nearby, which as a result PW1 was alerted. 

15.Considering the circumstances of the case, the appropriate sentencing starting point would be 2½ years’ imprisonment. 

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

17.Accordingly, the defendant is sentenced to 20 months’ imprisonment for this charge.

2^nd Charge

18.Upon conviction on indictment, a person is liable to imprisonment for 3 years. 

19.This is the defendant’s first conviction of this charge.  The tools had not been used in the commission of the 1^st charge offence.  The same consists only of a spanner and two hex keys. 

20.The sentencing starting point for this charge is 6 months’ imprisonment and by reason of his guilty plea, the same is reduced to 4 months’ imprisonment. 

21.This court had considered the fact that the defendant had these tools on him when committing the 1^st charge offence and the two offences were committed by the defendant at the same time and they are totally related. 

22.Considering the totality principle and the defendant’s overall culpability in this case, the court considers 20 months’ imprisonment a just and proportionate sentence for the defendant. Accordingly, the sentence of the two charges are to run totally concurrent with each other. 

23.As for the two concurrent suspended sentence imposed on the defendant on 23 August 2021 (WKCC 2550/2021), this court sees no reason why the same should not be activated.  Therefore, the same is activated and the defendant shall serve the 2 weeks’ imprisonment consecutive to the sentence in the present case.