HKSAR v. Chan Wai-sang

DCCC1244/2008

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 1244 OF 2008

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Before:   Deputy District Judge A. Wong

Date: 6 February 2009 at 4.17 pm

Offence:  Burglary, etc. (入屋犯法罪等罪項) 

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Reasons for Sentence

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1. The defendant pleaded guilty to 12 charges of burglary, that is, Charge 1 to Charge 12 in this case, and one charge of possession of dangerous drug, that is, Charge 13.

2. In sentencing, I take into account the whole circumstances of the case, including its nature and facts, background of the defendant and mitigation put forward on his behalf.

3. I do not intend to repeat the facts of each case of burglary, which are set out in details in the Summary of Facts.  Each of the burglary cases involved stealing or attempted stealing in commercial premises.  The defendant started this series of offences in January 2008 in Yuen Long and then engaged in 11 more in the following nine months in various parts all over the territory.

4. He admitted having used skeleton keys in most of the incidents.  In the first case, he stole $40,000 and, in the second, $26,000.  In the other cases, the amount of money or value of the property stolen was much lower except in the incident of the Charge 9.  In the incident of Charge 6, he did not steal anything, and got himself hurt.

5. Charge 13 relates to the dangerous drug found at the defendant’s home.  The dangerous drug is 2.85 grammes of a mixture containing 1.79 grammes of heroin hydrochloride. 

6. The defendant is obviously drug-dependent.  However, in view of the heavy imprisonment term he is facing, I do not consider it necessary to obtain a DATC report before sentencing.

7. All the burglary charges relate to burglary in commercial premises.  In the case of HKSAR v Cheng Wai Kai CACC338/2007, the Court of Appeal has this to say:

“The proper starting point for sentence in a case of burglary of non-domestic premises is 30 months’ imprisonment ... The starting point can be adjusted upwards if there are aggravating circumstances such as; (1) the offence is carefully planned and skilfully executed involving the use of heavy instrument or equipment; (2) the offence is committed by two or more people; (3) the offence targets at substantial premises and involves substantial properties; (4) the offender is a professional burglar and not just an opportunist; (5) the offender has previous convictions, particularly previous conviction of similar nature, and (6) the offender commits multiple offences.”

8. The defendant is 45 years of age.  He was a lorry driver before but was dismissed after the Lunar New Year in 2008.  The court was told that the defendant has been a dangerous drug addict for more than 15 years.  He has a lengthy conviction record, most of which related to offences of dishonesty.  When the defendant was young, he was convicted for four charges of theft.  Since 1985 when he was 22 years of age, he has been convicted on seven occasions for having committed the offence of burglary.  The last such conviction was in September 2005, for which he was sentenced to 28 months’ imprisonment.

9. I am of the view that the defendant is a professional burglar, not only that he had committed the offence for so many times on pervious occasions, in the present case, he used skeleton keys to gain the illegal entry.

10. I have had regard to sentencing precedents, including those submitted by learned defence counsel.  Bearing in mind the aggravating features as mentioned in the case of Cheng Wai Kai, I adopt a starting point of three years for each of the burglary charges. 

11. As regards the charge of possession of dangerous drug, I am of the view that a starting point of 12 months is appropriate. 

12. The defendant pleaded guilty.   He is entitled to a one-third discount on this ground.

13. In mitigation, the court was told that the defendant is the sole breadwinner of the family.  His wife is a housewife.  His wife and his young daughter now need to resort to social security.  However, this does not justify any further discount.  The result is what the defendant should consider before he embarked on all these offences.

14. Learned defence counsel urged the court to consider that without his confession, there is no evidence against the defendant in most charges.  The prosecution takes no issue on this point.  I will give the defendant a further four months’ discount on this ground for all the burglary charges, except for Charge 1 and Charge 6, for which there is evidence implicating the defendant anyway.

15. So, based on the matters aforesaid, I sentence the defendant to 24 months’ imprisonment for each of Charge 1 and Charge 6 and 20 months’ imprisonment for each of the other burglary charges.  For Charge 13, that is, the possession of dangerous drug charge, I sentence the defendant to eight months’ imprisonment.

16. Each burglary charge represents a separate and distinct incident.  The possession of dangerous drug charge relates to an offence distinct in nature.  As a matter of principle, consecutive sentences are appropriate, subject to totality.

17. Having considered the whole circumstances and bearing in mind totality, I make the following order:  the sentence for each charge, except Charge 1, Charge 6 and Charge 13, to run concurrently; sentence for each of Charge 1 and Charge 6 to run concurrently but their aggravate to run consecutively to the other sentences; and sentence for Charge 13 to run consecutively to the other sentences, making a total sentence of 52 months.