HKSAR v. Chan Po Heung

DCCC 2/2023

[2023] HKDC 1506

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 2 OF 2023

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REASONS FOR SENTENCE

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1.The defendant pleaded guilty to one count of Burglary, contrary to section 11(1)(b)  and (4)  of the Theft Ordinance, Cap 210.

Facts

2.Room 403, Kai Wong House, Kai Tin Estate, Lam Tin, Kowloon is a public housing flat comprising a living room, 2 rooms, a bathroom and a kitchen.  The kitchen is situated by the side the unit’s entrance, which consists of a wooden door and an iron grille.  Mr Lee and his family reside in this flat.

3.Around 6:10 am on 13 August 2022, Mr Lee was sleeping in the living room while his wife and children were sleeping in the rooms.  At that time, the entrance’s wooden door was half-opened while the iron grille was closed but not locked.  Mr Lee was roused from his sleep by the noise of the iron grille being opened.  Seeing that the defendant had entered the kitchen, Mr Lee shouted at her.  The defendant immediately ran out of the kitchen and left Mr Lee’s flat.

4.Mr Lee checked the refrigerator and found a box of 1-litre milk worth about HK$15 missing.  A report was made to the police.

5.The defendant was living on the same floor as Mr Lee who did not know the defendant but had come across her occasionally in the lift lobby.

6.On 31 August 2022, the defendant was arrested in her home at Room 411, Kai Wong House for burglary.  Under caution, the defendant admitted that she had gone to Mr Lee’s flat and stolen a box of milk to drink.

7.During a cautioned video-recorded interview held on the same day, the defendant admitted that at the material time, she walked past Mr Lee’s flat and found that the wooden door and the iron grille were both opened.  Wanting to check on her mother’s friend who was an old woman living there, she entered the flat.  She then went into the kitchen.  It was dark inside.  When she could not find any drinking water to quench her thirst, she took a box of milk and drank it.  Upon hearing a man shouting at her, she ran away.  She admitted that she did not know the residents of the flat, nor the name of her mother’s friend; and she did not locate this old woman subsequently to give her an explanation as to what happened on 13 August 2022.

The defendant’s Background

8.The defendant is 57 years old.  She was born in the mainland and was educated in Hong Kong up to secondary 3 level.  According to defence counsel Ms Emma Tsang, the defendant is unemployed and relies on Comprehensive Social Security Assistance.  She is divorced and has a 30-year-old daughter with whom she had been estranged for years.  She lives with her boyfriend and her mother in the flat where she was arrested.

9.She has 20 previous convictions, 4 of which are for theft. There is no conviction for burglary.

Mitigation

10.Defence counsel urged the court to grant the defendant due credit for her guilty plea which is an expression of her remorse and her willingness to take responsibility for her own conduct.

11.Ms Tsang said that since the defendant’s remand, her estranged daughter started visiting her and the relationship between the two have since improved to such an extent that the daughter has offered to live with the defendant after she has served out her sentence and has helped her to find a job.  With the daughter’s support, the defendant believes that the chances of her re-offending are low.

12.Regarding the circumstances of the offence, Ms Tsang asked the court to take into account that:-

(i)  the defendant did not break into Mr Lee’s flat. She was on her way home when she noticed that the door and the iron grille of her neighbour’s flat were opened. Acting on the spur of the moment, she entered the flat, went into the kitchen and drank the box of milk. The offence was committed opportunistically;

(ii)  her intrusion was minimal as she entered only the kitchen which was very close to the entrance, and stayed inside for just a brief period of time;

(iii)  only one occupant of the flat was aware of her entry, there being no evidence that the other occupants were in anyway alarmed or frightened;

(iv)  only one item worth $15 was stolen; and

(v)  the occupants did not wish to pursue the matter.

13.While acknowledging that the usual starting point for burglary of domestic premises is 3 years’ imprisonment, as decided by the Court of Appeal in R v Chan Yui Man CACC 36/1988, Ms Tsang submitted that the present offence was committed opportunistically and drew the court’s attention to two other Court of Appeal decisions in HKSAR v Kwok Wing Kam CACC 394/2010 and HKSAR v Law Tin Yam CACC 258/2010.  In Kwok Wing Kam, the defendant burgled a unit of the building in which she resided and stole a box of lemon tea.  In Law Tin Yam, the defendant burgled an unlocked and unattended cubicle next to his own and stole a pack of cigarettes.  In each case, the Court of Appeal decided that 15 months’ imprisonment was the appropriate starting point.

14.Ms Tsang submitted that, like the case of Law Tin Yam, the present offence is, as the Court of Appeal in that case said, “…more in the nature of an opportunistic offence rather than a burglary targeting ordinary domestic premises with all the adverse implications for householders which such burglaries can bring”[1], and thus warranted a departure from the 3 years’ starting point.

Sentencing considerations

15.The burglary was committed by the defendant without breaking into the flat.  She simply pulled open an unlocked iron grille and went uninvited into Mr Lee’s flat through its partially opened wooden door.

16.Mr Lee’s flat is on the same floor as her own flat and, looking at the two flats’ respective flat number of “403” and “411”, is probably just a few units away from where the defendant lives.  It is therefore possible, as defence counsel submitted, that the defendant committed the offence when she was on her way home.

17.I accept that the degree of intrusion was minimal, both by reason of the extent of the defendant’s entry and of the duration of her stay.  She only entered the kitchen whose entrance, according to the sketch of the premises, is very close to the flat’s entrance, and she had time only to find and drink up the box of milk before she fled.

18.Apart from Mr Lee who was sleeping in the living room and was woken up by the noise of the defendant opening the iron grille, there is no evidence that the other occupants of the flat were disturbed or frightened in any way by the defendant’s acts.

19.There is also no evidence of any rummaging, let alone ransacking.  Nor is there any evidence of physical damage to the furnishings or to any objects inside the flat.  The only loss suffered by the householders was a box of milk worth about $15. 

20.The nature of the defendant’s acts is that of a sneak thief, and is basically not much different to the conduct of the offenders in the two Court of Appeal cases of Kwok Wing Kam and Law Tin Yam cited by Ms Tsang.

21.I accept that the defendant’s criminality is similar to that of the culprits in those two cases.  I would therefore adopt a starting point of 15 months’ imprisonment for the offence committed by the defendant.

22.The defendant’s remorse, her pleas for leniency, her reconciliation with her daughter and their plans for the future as mentioned in the defendant’s letter to the court, as well as the fact that the defendant has obtained a “Food Hygiene Certificate for Hygiene Manager Course” in June 2023, are duly noted.

23.Her guilty plea, for which she will get a one-third discount in sentence, is the only effective mitigating factor.

24.The defendant is sentenced to 10 months’ imprisonment.