HKSAR v. Cheng Wai Anthony

DCCC 165/2023

[2023] HKDC 1495

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 165 OF 2023

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REASONS FOR SENTENCE

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1.Mr Cheng pleaded guilty before me to one charge of Burglary, contrary to section 11(1)(b)  and (4)  of the Theft Ordinance, Cap 210. Particulars are that he, on 31 August 2022, in Hong Kong, entered as a trespasser part of a building known as Room A, Flat 14, 11th Floor, Alhambra Building, No 389 Nathan Road, Yau Ma Tei, Kowloon, stole therein two British National (Overseas)  Passports, one Hong Kong Special Administrative Region Passport, One Mainland Travel Permit for Hong Kong and Macao Residents, cash of $10,000 Hong Kong currency, one iPad Pro, one iMac, two backpacks, one speaker, 10 bank cards, one Monthly Ticket Holder Identity Card, one student identity card, 3 driving licences and 4 membership cards.

Facts admitted by Mr Cheng

2.Room A was a sub-divided unit of Flat 14, 11/F of Alhambra Building, Yau Ma Tei.  Although Room A had locks and keys, Flat 14 did not.  The entrance to Flat 14 did not even have a door installed.

3.On 31 August 2022, between about 8:50 and 8:53 pm, Mr Cheng was seen in the vicinity of Room A carrying a black backpack and a silver suitcase.  At about 9:38 pm, Mr Cheng was seen carrying the same on his way out Alhambra Building.

4.At about 10:30 pm the same day, the sole occupant of Room A namely PW1 returned after having spent 4 hours or so outside.  He found the lock on the wooden door prized open and the wooden door was not shut properly; there were also signs of ransacking inside Room A.  He found various items missing from Room A.  He made a police report the same day.

5.On 5 September 2022, outside a guest house in a Jordan Road building, police found Mr Cheng with a silver suitcase beside him.  They suspected him to be involved in the above burglary.  They intercepted him and brought him back to the guest house.  There, the police spotted a silver iMac which had the same serial number as that on an iMac reported stolen.  Mr Cheng was arrested for burglary.  Upon search of the silver suitcase, PW1’s blue and grey backpack was recovered.  Inside the blue and grey backpack were found most of the other stolen property.  Out of the list of stolen property particularized in the Charge, only the following items were unrecovered:-

(a)  One BNO purported passport of PW1;

(b)  One HKSAR passport of PW1;

(c)  Cash of $10,000;

(d)  One black iPad Pro worth $19,000; and

(e)  One black backpack worth $500.

6.Mr Cheng now admits he entered Room A as a trespasser and he stole therein the items listed in the Particulars of Offence.

Criminal record

7.Mr Cheng has 29 previous convictions 19 of which were related to offences under the Theft Ordinance, Cap 210, including Burglary, Theft, and Handling stolen goods.  His last conviction was recorded in September 2022.

Antecedents

8.Mr Cheng is aged 44 (43 at the time of the offence), educated to F1, unemployed at the time of the arrest.  Mr Cheng is single and has no fixed address.

Mitigation

9.Mr Duncan Ma of counsel assigned by the Director of Legal Aid mitigated on behalf of Mr Cheng.  The following is a summary of the mitigation submissions.

10.Prior to the arrest, Mr Cheng had to earn money to support himself (eg by paying monthly rent of about $7,000)  and to support his 75-year-old mother (by making monthly contribution of about $3,000).

11.Mr Cheng committed the offence because the pandemic caused him to lose income in around July and August 2022.  He promises not to commit any further offence in the future.

12.The Court of Appeal has stated that the proper starting point of sentence for burglary of domestic premises is one of 3 years’ imprisonment (R v Chan Yui Man, CACC 36/1988).

13.Mitigating factors include:-

(a)  Mr Cheng is remorseful: he made some confessions to the police and he pleaded guilty;

(b)  He committed the offence alone;

(c)  The burglary was not sophisticated nor carefully organized; it did not involve use of heavy instruments or equipment; and

(d)  Mr Cheng picked up the suitcase at the backstairs of the building on the day; so it was not something he brought to the building.

14.Mr Ma referred to the 6 aggravating factors identified in HKSAR v Cheng Wai Kai, CACC 338/2007, at para 15, and submitted that only one of which applies, namely that the offender has previous convictions, particularly previous conviction of similar nature.

15.Mr Ma acknowledges that the fact that Mr Cheng committed the offence whilst on police bail may constitute another aggravating factor.

16.Mr Ma urges the court to consider the overall circumstances of the case and to view the above aggravating factors from a less stringent perspective; and then to impose a less severe sentence on Mr Cheng.

17.Mr Ma submitted a mitigation letter (in Chinese)  written by Mr Cheng himself.  The contents generally are that Mr Cheng apologizes for committing the offence and is regretful about it; that he will find a suitable job and will take care of his aged mother upon release; that he hopes the court will sentence him leniently.

Sentence

18.I do not see any reason why I should not as a start adopt the usual starting point for burglary of domestic premises, namely 3 years’ imprisonment.

19.For Mr Cheng’s previous dreadful and similar records, I shall add 3 months; and for his commission of the present offence whilst on (and jumping)  bail, I shall add another 3 months.

20.Mr Cheng pleaded guilty in good time.  He shall be given the customary 1/3 discount in sentence.  There are no other justifiable mitigating factors to enable me to reduce his sentence further.

(Mr Cheng, please stand)

21.Mr Cheng shall go to prison for 2 years and 4 months.