HKSAR v. Chan Kai Kau

DCCC1147/2008

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 1147 OF 2008

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Before: H H Judge S. D'Almada Remedios

Date: 7 January 2009 at 11.57 am

Offence:  Burglary (入屋犯法罪)

Reasons for Sentence

1. Defendant, you have pleaded guilty to one charge of burglary, contrary to section 11(1)(a) and (4) of the Theft Ordinance.  You have admitted that on 1 November 2008, in Hong Kong, you entered as a trespasser part of a building at No. 1-2 Chuk Yeung Road, Sai Kung, New Territories with intent to steal therein.

2. On 1 November 2008, at about 6.40 am, a domestic helper who worked at that house was awakened by some noise.  She went to the ground floor of the house and saw you with a red-coloured garment around your neck.  At that time, you were using a crowbar to prise open a side door of the house.  She went back to her room and reported the case to the police.

3. Shortly thereafter, some four minutes later, a team of police officers arrived at the house.  Upon entering the house, they saw you walking down from the staircase of the house.  When you saw police officers, you ran up the stairs.  You jumped down to the bush of the backyard through a toilet window on the first floor, then climbed over a wire fence of the house and entered the garden of a neighbouring house.  All the police officers gave chase.

4. You were finally intercepted and subdued by police officers.  Under verbal caution, you remained silent.  A crowbar was later seized on the ground floor outside of the side door of the house.  A pair of plastic gloves was seized from your hands, and a pair of red underpants was seized from around your neck.  A torch was also found in your left trousers pocket.

5. In a subsequent video-recorded interview later that same day, you admitted that you walked past the house, and when you walked past the house, you believed that there would be some valuable properties inside.  You then returned home and took the crowbar, a torch and a pair of plastic gloves.  Worried that you might be captured by the CCTV, you brought a pair of underpants to cover up your face.  You admitted having used the crowbar to prise open the door of the house and that you entered the house for stealing.

6. You have two previous convictions: one in 2004 of theft, shoplifting, which is now a spent conviction; and a second conviction of burglary committed in September 2007, to which you were given a 4-month suspended sentence for 2 years and a fine of $3,000.

7. Your solicitor, Mr Lai, has made full mitigation on your behalf today, and you yourself have written a letter to this court, expressing further pleas in mitigation.  I have taken into account all that has been said on your behalf by Mr Lai and all that you have said to me in your letter.

8. You are 45 years of age, born in Hong Kong and educated up to university degree level.  You are a degree holder in electrical engineering which you acquired in 1986 from the University of Sheffield.  At the time of the commission of this offence, you were unemployed.

9. I am informed that since your divorce in the year of 2000, you have never fully recovered.  You feel deeply hurt because you still love your wife, and that since your divorce, this has affected your ability to work as you have an inability to concentrate.  Prior to your divorce, you had worked at the Gold Coast Yacht and Country Club as a technical manager but was unable to keep yourself together and therefore was compelled to resign.  Since then, you have taken up odd jobs working for subcontractors at construction sites as a part-time electrician.  Your income has been unstable, but you have still managed to make ends meet as the house where you live is owned by your father.

10. However, since 2007, when the construction industry in Hong Kong was on the decline, you have had great difficulty in finding jobs.  You had to rely on your own savings and on some small money that your mother sent you from England of some £100 to £200-odd.  All your family members - parents and brothers - reside in England.  You live in Hong Kong alone.

11. You have informed me that you were told that your parents would sell their home, to which you were now living.  As a result, you have been under a lot of stress and confused and being threatened, with the loss of your place of refuge in Hong Kong, your only shelter, you have decided that it was time for you to return to England and to rebuild your life once again.  You had hoped in England to start a business and lease a fish-and-chip shop, but you of course had insufficient finance.  And as you desperately needed the money quickly, you had chosen to burgle this home.

12. You say, at the time your conscience started to bug you, and you were overcome by the sense that it was wrong, and that is when you decided to leave the premises.

13. I accept that nothing was stolen from the premises and of course that you have recognised that you have made a big mistake and a grave error in judgment.  As you well know and your solicitor has mentioned it, the offence of burglary is of course a very serious offence.  I am informed that your conviction and sentence that you were given in 2007 was a very unusual sentence of a suspended sentence because you had gone to a flat where you used to buy some fake CD-ROMs and at that time which was inspected by Customs and Excise, you took two rolls of toilet paper, and in view of the value of the items stolen, you were given a special discount for sentencing. 

14. I am sure though you are now aware that the sentence for burglary is one of an immediate custodial sentence, and the guideline is one of 3 years’ imprisonment for domestic premises.  These were of course domestic premises.  I find there to be no aggravating factors in this case, and in those circumstances, I take a starting point of 3 years’ imprisonment and will give you full credit for your plea of guilty and your remorse and shall reduce that term by one-third to that of 2 years’ imprisonment, to which you shall be so sentenced.

15. I must, however, deal with the sentence which you were given in September 2007 which was a 4-month suspended sentence for 2 years.  At the time of commission of this offence before me in November 2008, that suspended sentence was still active.  So you committed this offence during your period of suspension, and in cases such as these, a suspended sentence should be activated.

16. The time that you committed this offence, I am informed by your solicitor that you had actually forgotten about this.  That is no excuse or reason.  This offence was committed very shortly after you were given the suspended sentence, just over one year.  I have taken into account the principle of totality and I do consider that the 4 months’ imprisonment should be activated.

17. In those circumstances, I shall activate the 4 months and that 4 months shall be served consecutively to this 2 years’ imprisonment.  So your total term of imprisonment is 2 years and 4 months’ imprisonment, to which you are so sentenced.