HKSAR v. Cheung Kim Tang

   DCCC 272/ 2009

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 272 OF 2009

________________________

________________________

Before: Deputy District Judge Eddie Yip

Date:    17 April 2009 at 12:33pm

Charge:  Burglary (入屋犯法罪)

__________________

Reasons for Sentence

__________________

The charge and facts

1.The defendant pleads guilty to a charge of burglary of a residential flat situated at Ground Floor, No. 48, Muk Min Ha Tsuen, Route Twisk, Tsuen Wan, New Territories (“the Flat”). 

2.At 1 p.m. on 26 October 2008, the occupant, Madam Wong, put her handbag inside the bedroom.  It contained some cash, personal documents, keys, etc. as stated in the Particulars of Offence.  The total value of the properties was HK$2,830.  At about 7:45 p.m., she found themosquito screen installed at the window of the bedroom tampered with.  The handbag and its contents had gone missing.  She reported the case to the police. 

3.On 3 February 2009, the Defendant surrendered himself to the police.  He was arrested for burglary of the Flat.  Under caution he said that at between 6 and 7 p.m. he was walking past the Flat when he saw its window open.  The handbag was on the bed.  He stole the handbag by hooking it onto the handle of a mop which was found outside the Flat.  He had kept the cash and the mobile phone and discarded others.  He had later sold the mobile phone.    

Criminal record

4.He has a number of convictions.  Of relevance are 2 previous convictions for burglary in 1997 and 2 previous convictions for theft in 1992 and 2008 respectively. 

Mitigation

5.I am told that the Defendant is 38 years of age, still single.  He was educated up to F. 1.  He did a variety of unskilled jobs.  His father is a construction worker and his mother a housewife.  He has a younger brother who is a delivery worker. 

6.It is submitted that his surrender to the police warrants a discount in itself.  The prosecution says that the evidence against the Defendant consisted of telephone records of the stolen mobile phone and witnesses who connected the Defendant to the use of it.   

The principles of sentence

Sentencing guidelines for burglary of domestic premises

7.In R v CHAN Yui Man, Cr App 36/1988, the Court of Appeal held that in burglary of domestic premises, 3 years was about the proper starting point for a first offender of full age. This was followed in R v Chan Wing Ching Cr App 100/1991, R v Luk Wai Kit Cr App 99/1992, and R v Wong Man Cr App 372/1992.

Opportunistic burglar

8.In HKSAR v Sim Ka-wing, CACC 450/2000, the appellant was sentenced for burgling a non-domestic premises, a restaurant of Delifrance.  Insofar as the sentence is concerned, the court has to distinguish between conventional burglary and a sneak-in burglary.  Keith JA said:

“9.     The conventional starting-point of 2½ years’ imprisonment for the burglary of non-domestic premises relates to burglaries with no aggravating or mitigating features.  Such burglaries will involve a measure of planning, and thus a degree of premeditation and planning is already built into the conventional starting-point.  The conventional starting-point can be lowered in the case of the opportunistic burglar, akin perhaps to the sneak thief who walks into an open office to steal whatever he can find.  Likewise, the conventional starting-point can be increased in the case of professional criminals who plan their burglaries with meticulous care and steal goods and cash of considerable value.”

Surrender to the police

9.In R v Fung Nai-mo [1986] HKC 305, it was said that the accused had no realistic option but to turn himself in.  It did not amount to mitigation to any great extent.  Generally speaking, it depended on how strong the case was as against him and whether it indicated remorse.       

The sentence I pass

10.Based on the line of authorities from Chan Yui-man (supra) onwards, I shall take a starting point of about 3 years’ imprisonment.  But the present case is a sneak-in burglary.  According to Sim Ka-wing (supra), it attracts a lower sentence than the conventional type where some planning was involved.  I take a starting point of 2 years.  I give a one-third discount for the plea of guilty.  While the evidence was rather strong as against the Defendant and he would have no realistic course but to surrender himself to the police, I accept that it indicated some remorse.  I am prepared to give him a discount of 2 months.  There are no other mitigating factors.  I sentence him to imprisonment for 1 year and 2 months.