HKSAR v. Chow Yuet Kwong

DCCC 200/2023

[2023] HKDC 1207

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 200 OF 2023

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REASONS FOR SENTENCE

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1.The defendant is convicted of a charge of burglary, contrary to section 11(1)(b)  and (4)  of the Theft Ordinance, Cap 210, on his own plea and agreement to the Amended Summary of Facts. 

Facts

2.PW1 was a part-time staff at a green grocery. His job duties included guarding the shop overnight.  There was no gate to the shop and the entrance remained open after business hours.

3.On 9 January 2023 at around 8 pm, PW1 commenced duty.  At around 5:30 am, he woke up from his sleep and found his backpack, which was placed on a box inside the shop, opened.  A wallet, which was worth HK$100, originally placed inside the backpack was missing.  The wallet contained his Hong Kong ID card, two bank cards and HK$1,700 cash (three HK$500 banknotes and two HK$100 banknotes).

4.CCTV captured the defendant entering the shop, reached his hand inside PW1’s backpack and took a wallet from the backpack. 

5.Later on 10 January 2023 at around 12:35 pm, the defendant, wearing an outfit similar to that as captured by CCTV in the shop, was intercepted by police.  Inside his wallet, there were three HK$500 banknotes and two HK$100 banknotes.  He was arrested for theft.  Under caution, he admitted that he stole a wallet because he had no money.  He kept the cash and disposed of the wallet somewhere else.

Criminal Record

6.The defendant has 60 criminal records involving convictions of 75 charges.  There were 44 theft-related convictions of which 15 are burglary or attempted burglary convictions.  His criminal record dated back to the year 1983.  His last conviction was in February this year for which he was sentenced to a total of 9 months’ imprisonment and he is due to be released on 8 August this year.

Mitigation

7.The defendant is now aged 58.  He has received education up to primary school level.  He lives in the accommodation provided by Christian New Life Association in Yuen Long.  At the time of the offence, he was unemployed and was living on CSSA and disability allowance of around HK$7,000 per month.

8.Defence counsel said the defendant has made use of his time in custody and reflected upon himself.  He begs for leniency and a chance to turn anew.  His goal after release is to go back to Christian New Life Association and make meaningful contribution to society by being a volunteer.

9.Defence counsel conceded that the starting point for sentence in a burglary of non-domestic premises is generally 2½ years’ imprisonment (R v Wong Man [1993] 1 HKC 80).  He also said that in the case of HKSAR v Cheung To Ming [2006] 2 HKLRD 259, the Court of Appeal affirmed that a lower starting point can be taken in the case of an opportunistic burglar similar to a sneak thief.  In that case, the Court of Appeal adopted a sentencing starting point of 18 months’ imprisonment.

10.Defence counsel submitted the present case is also an opportunistic crime.  The act was not premeditated and did not involve extensive planning or sophistication in the commission of the offence.  The defendant did not use any tools or otherwise use force to break in the premises.  It was said that the defendant did not encounter or confront any person at the location nor did he cause shock or injury to others.

11.Defence counsel submitted that by reason of the defendant’s past record, the court should enhance a period of no more than 3 months’ imprisonment.  

12.He asked the court to afford a one-third sentencing discount to the defendant by reason of his guilty plea.  He also urged this court to consider the totality principle and order part of the sentence that the defendant was presently serving to run concurrent with the sentence to be imposed. 

Discussion

13.Before sentencing, this court has carefully considered all that was said on behalf of the defendant as well as the letter from Christian New Life Association.

14.As conceded by defence counsel, it is well established that the appropriate sentencing starting point for burglary of non-domestic premises in the absence of aggravating or extremely strong mitigating reasons is that of 2½ years’ imprisonment (HKSAR v Sim Ka Wing, CACC 450/2000).

15.The defendant here acted alone.  The shop in question was not fitted with a gate and anyone can enter. No tools were used in gaining entry to the premises. The value of property stolen is relatively small. The court, however, was aware that at the time of the offence, the defendant should be aware of the presence of PW1 sleeping within the shop and that should he wake up, for whatever reason, he would be startled. The appropriate sentencing starting point in this case is 21 months’ imprisonment.

16.By reason of the defendant’s poor previous record, especially those related to burglary or attempted burglary, the defendant is clearly a persistent offender, which is an aggravating feature in sentencing. The appropriate sentencing starting point should be enhanced by 6 months to 27 months’ imprisonment.

17.The defendant committed the present offence whilst he was on bail for another offence. This again constitutes an aggravating feature in sentencing. The sentencing starting point is further enhanced by 3 months to 30 months’ imprisonment.

18.In this case, the most valid and useful mitigating factor is the defendant’s own guilty plea, for which he is entitled to one-third sentencing discount.

19.He is therefore sentenced to 20 months’ imprisonment.

20.The sentence that the defendant was presently serving relates to a possession of dangerous drugs offence. The nature of which is totally different from the present burglary offence and they were committed months apart. The 2 offences were totally unrelated to each other. This court does not find it appropriate to order part of the present sentence to run concurrent to the sentence that the defendant was serving.