HKSAR v. Chong Fai Kit and Another
Read the full judgment text of DCCC 92/2023 on BabelCite. This District Court judgment was delivered on 7 December 2023.
1. The defendants here, defendants 1 and 2, have pleaded guilty to a single charge of attempted burglary which occurred on 24 September 2022 at a premises in Argyle Street in Mong Kok. The facts have been agreed by the defendants. I have convicted them both.
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DCCC 92/2023 [2023] HKDC 1759 IN THE DISTRICT COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION CRIMINAL CASE NO 92 OF 2023 ________________________
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________________________ REASONS FOR SENTENCE ________________________ 1.The defendants here, defendants 1 and 2, have pleaded guilty to a single charge of attempted burglary which occurred on 24 September 2022 at a premises in Argyle Street in Mong Kok. The facts have been agreed by the defendants. I have convicted them both. 2.The facts show that in the evening of 24 September 2022 at around 7.05 pm, the defendants were seen on a CCTV installed outside the flat and viewable on a mobile app by the 1st prosecution witness. In any event the 1st defendant was seen to use a drill to try to break open the lock of the metal gate of the flat. The matter was reported to the police and the 1st defendant was intercepted outside the flat at about 7.20 pm. At that time he appeared to be attempting to open the handle of the metal gate of the flat by pulling it. The drill and various drill tips were found nearby. 3.The 2nd defendant who had been present and the prosecution case is that he was there as a lookout. The 2nd defendant was intercepted the next day. 4.Both defendants admitted that they were present there attempting to trespass in that part of the building with intent to steal therein. Those facts provided the basis for conviction. 5.As far as the defendants’ backgrounds are concerned, they both in fact aged 53. The 1st defendant is, I am told, married but separated. He has some difficulties in suffering from a long-term auto-immune condition and has worked as a transportation worker in the past. This defendant has previous convictions, some four recorded on his record. None of them are for the offence of burglary or in fact for offences of dishonesty. 6.The 2nd defendant is the same age. He is separated as well and living with his girlfriend. He has worked as a construction worker, an iron worker on construction sites in the past. This defendant has some 21 recorded incidences of conviction, including offences of dishonesty and drug offences. Of relevance to the present conviction are previous convictions of burglary in 2017, receiving a sentence of 26 months and then in 2020 convicted of four offences of burglary and receiving a sentence of 20 months each, Sum A, that is three of the offences would be served consecutively. But that establishes that this defendant, that is the 2nd defendant has previous convictions on two previous occasions. It does not appear at this stage from that record there had been any enhancement to sentence as a result of that but clearly those convictions show a failure of a deterrent effect in previous sentencing. 7.As far as the approach to sentencing is concerned, this is an attempt to a domestic premises burglary. Sentences for attempts to commit offences are treated in the same way as the completed offences. There is in fact a tariff sentence in respect of domestic premises burglaries. It can be found in the case of HKSAR v Lau Pang in 2004 3 HKLRD 565. 8.The starting point for sentence for a person of clear record who has pleaded not guilty where no aggravating factors exist would warrant 36 months’ imprisonment. That will be the appropriate starting point for both defendants before any aggravating factors are taken into consideration. 9.Of course aggravating factors can exist in any burglary. In this case there is only one aggravating factor which is common to both defendants and this is the fact that they acted in concert in committing this burglary and that makes the burglary a more serious affair and can lead to an enhancement of sentence from the initial 36 months. 10.In respect of the 2nd defendant there is of course the additional aggravating factor, the failure of sentencing in the past to deter this present offence, and that is an acting factor in sentencing the 2nd defendant. I do not consider any further aggravating factors exist. 11.I do not consider the use of a drill and drill bits by the 1st defendant represents any particular sophistication in the crime. 12.As far as mitigating factors for the defendants are concerned there is of course their pleas of guilty. The timing of their indication of pleas of guilty would mean that both defendants are entitled to a full one-third discount from the final starting point for sentence. 13.As far as the 1st defendant is concerned his sentence will be as follows, that is after the aggravating factor of the fact that the defendant is acting in concert is taken into effect I take a starting point of 39 months’ imprisonment for the 1st defendant, reduce it to 26 months’ imprisonment having regard to his plea of guilty. 14.As far as the 2nd defendant is concerned, I have identified the fact that there are two aggravating factors in respect of his plea. In his case I will take a starting point of 42 months’ imprisonment reduced to 28 months’ imprisonment for his plea of guilty, a one-third discount.
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