HKSAR v. Wan Kai Lun

DCCC 1111/2022

[2023] HKDC 1364

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 1111 OF 2022

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REASONS FOR SENTENCE

The defendant pleaded guilty to a charge of "Burglary". He burgled a flat situated at the 16^th Floor of a residential building in Happy Valley. No property was stolen except a door was damaged.

Summary of Facts

2.The burgled premises ("the Flat")  were situated at the 16^th Floor, No.2 Wang Tak Street, Happy Valley, which is a 19-storey residential building ("the Building").  The rear staircase of the Building can lead to its carpark, bypassing the guard post.

3.About 12:30 p.m. on 15 June 2022, Madam Ng (PW1)  and her cohabitee left the Flat.  All windows were secured and the main door ("the Door")  was locked.

4.When PW1 returned to the Flat around 3:15 p.m. on the same day, she noticed the Door having been prized and left half open.  She also saw some wood chips on the floor.  PW1 pushed open the Door and looked inside.  She saw an unknown male (later confirmed to be the defendant)  standing there holding a black bag.  The defendant did not wear a face mask.  PW1 asked him "Who are you?" The defendant replied "Calm down.  You don't need to care about who I am.  Just let me go."  PW1 was scared and went downstairs by taking the lift.  The defendant fled via the rear staircase.  PW1 notified the security guard and the Police was alerted.

5.PW1 did not suffer any property loss, except the cost of repairs for the Door was about $10,000.

6.A black bag containing a crowbar, a screwdriver and a pink towel were found at the 11^th Floor rear staircase.  About 5:10 p.m. on the same day, the Police brought PW1 there.  She confirmed that the black bag was held by the defendant when she saw him in the Flat.

7.Based on CCTV footage, the Police found the defendant having entered the Building and driven a motorcycle bearing plate number XG3477 ("the Motorcyle")  on that day.

8.About 1:00 p.m. on 17 June 2022, DPC 24424 spotted the Motorcycle parked at Kwai Sau Road in Kwai Chung.  About 1:38 p.m. on the same day, the defendant came to open the trunk of the Motorcycle.  He was arrested for "Burglary".  Under caution, he remained silent.

9.An identification parade was held on 24 June 2022.  PW1 identified the defendant as the intruder she saw in the Flat on 15 June 2022.

Mitigation & Sentence

10.The defendant is 48 and has 7 conviction records, which included 2 "Burglary" offences, 2 "Robbery" offences and 6 theft-related offences. Defence counsel Ms. Ma informed me that the defendant is single. His father passed away in 2018 and he has no contact with any of his family members. He is educated up to Form 1. He has taken up different jobs after leaving school.

11.In mitigation, Ms. Ma submitted that the defendant was last released from prison in June 2015. In other words, he has managed to stay on track for 7 years until the present offence. Ms. Ma explained that the defendant lost his job as a waiter due to the pandemic. He was unemployed during the pandemic and had exhausted his savings. Ms. Ma informed me that the defendant did approach the Social Welfare Department for help, but they could not find him a job.

12.Time after time, the court has expressed in very clear terms that being in financial difficulty (however serious)  is no mitigating factor for committing a crime. I would not comment on whether it was appropriate to approach the Social Welfare Department for job placements. Even if no jobs could be found, I am sure there were safety net measures available to the defendant so that his subsistence needs could be met. He knew better than anyone that committing a crime is not a solution to his problem.

13.The normal starting point for domestic burglary is 3 years' imprisonment. Although PW1 suffered no property loss, the Door was damaged and she was clearly alarmed and frightened by the presence of a stranger in her home. The defendant is no doubt a repeated offender, but I would bear in mind that his last conviction is dated 2012. Also, he carried with him 2 pieces of breaking-in tools and had apparently used them.

14.Having balanced all factors, I consider a starting point of 39 months' imprisonment appropriate and just. With the timely guilty plea, the sentence is reduced to 26 months. Apart from this, I see no other mitigating factors which warrant any further reduction. I sentence the defendant to 26 months' imprisonment.