HKSAR v. Law Chi Ying, Samuel

DCCC289/2009

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 289 OF 2009

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Reasons for Sentence

1.The defendant pleaded guilty to one charge of burglary.  In sentencing, I take into account the whole circumstances of the case, including its nature and facts, personal background of the defendant as well as mitigation put forward on his behalf by the learned defence counsel.  I have also had regard to certain sentencing precedents.

2.The facts of the case are simple.  It took place in a student hostel in the Hong Kong University.  On 21 February 2009, the victim, who was an exchange student, left her room with its door closed but not locked.  She left in the room unattended her mobile phone and wallet with the contents as set out in the charge.  When she returned in about five minutes, both items were missing.  She made a report.

3.Six days later, the defendant opened the door of another room in the same hostel only to find the occupant inside.  They did not know each other.  The defendant apologised and left.  He was, however, stopped.  The victim’s Octopus card was kept in his wallet.  Police was called.  The defendant was arrested.  Under caution, the defendant admitted to have stolen the victim’s properties from her room.

4.The defendant is 54 years of age.  From the antecedent statement for which the defence did not take any issue, the defendant had attended lower secondary education and has been out of employment for a long period of time.  He is receiving CSSA at about $3,000 per month.

5.The defendant has an appalling criminal conviction record.  Since 1973, when he was then 19 years old, the defendant was on 33 occasions convicted almost all for dishonesty offences.  He has committed more than 40 burglaries as revealed by the record.  He was last convicted on 26 July 2006 also for a burglary offence, for which he was sentenced to 32 months’ imprisonment.  He was released on 22 February 2008.

6.In mitigation, I was told that the defendant was co-operative during the inquiry.  He was now remorseful and determined to turn over a new leaf.  He managed to keep out of trouble for one year after the last release.  I was also told that the defendant did not enjoy good health.  There is, however, no information that the defendant was suffering from any specific illness of significance.

7.The case took place in a student hostel.  The defendant managed to take the five minutes’ opportunity to steal in a place where he has no connection whatsoever.  I do not accept the contention by learned defence counsel that it was an opportunist burglary.  There is no evidence that the defendant was equipped with any tool.  The place burgled in this case was where the victim resided.  Burglary which takes place in such a premises is serious since there is always the possibility of confrontation with the occupant who would be subject to fear when a total stranger invaded his privacy.

8.This is a major aggravating feature recognised in a case of domestic burglary.  Since the same feature exists in the present case, the same sentencing consideration should apply.

9.In the light of the defendant’s previous conviction record and having regard to the cases such as HKSAR v Wan Ho Kit, Lawrence CACC479/2000 submitted by the prosecution and HKSAR v Chan Pui Chi [1999] 2 HKLRD 830, I am of the view that a higher than usual starting point should be adopted.  The defendant with his criminal record cannot be expected to be treated in the same way as a first offender.  The case of Wan Ho Kit Lawence of course is not a case which lays down any sentencing guideline or tariff.  In all the circumstances, I am of the view that a starting point of 4 years is appropriate.

10.The Summary of Facts reveals an incident leading to the arrest of the defendant.  I do not speculate why the defendant was there, and I do not take that matter into account in consideration of the sentence. 

11.The defendant pleaded guilty.  He is entitled to a one-third discount on that ground.  Having considered the whole circumstances, including mitigation, I am of the view that this is the extent of discount the defendant is entitled to in the present case.  Based on the matters aforesaid, I sentence the defendant to 32 months' imprisonment.