HKSAR v. Ip Wai Hung

DCCC965/2008

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 965 OF 2008

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Reasons for Sentence

1. Defendant, you have pleaded guilty to two charges of burglary before this court.  The offences were committed on the same day and approximately roughly about the same time. 

2. The offences were committed on 15 September 2008 in a building at 95-105 Battery Street in Tak Kei Building.  The premises differed in the two charges only to the extent that in the 1st charge it was room D of the 14th Floor, and in the 2nd charge it was Room D on the 15th Floor. 

3. In the 1st charge the items stolen were a notebook computer, two watches, five necklaces, 11 pendants a piece of jade and cash of some foreign currencies.  On the 2nd charge, cash of HK$3,050 and RMB1,550 was stolen.

4. On the material day the Tak Kei Building was being refurbished and was enclosed with scaffolding.  At about 7.40 pm on 15 September 2008 when the occupant of Room D of the 14th Floor - that is the 1st charge - attempted to open the main door of his flat with a key, he found that the door was secured with a door chain and could not be opened.  He also noticed the lights of his flat were switched on.  Feeling suspicious, he reported it to the police.  When the police arrived they noticed that a window of the flat was opened and the frame was broken. 

5. At about 8.25 pm on the same day the occupant of Room D on the 15th Floor returned home and found that his flat had been ransacked and the window was open.  The police cordoned off the building for investigation and in so doing a police officer saw you, the defendant, climbing down the scaffoldings from the 7th floor of the building.  The defendant was subsequently intercepted and arrested inside the building on the 4th floor, and you were positively identified by a police officer who had seen you climbing down the scaffolding. 

6. The property that was stolen in Charge 1 was recovered on the staircase on the 3rd floor of the building and P1 positively identified that as his lost properties.  The lost properties in Charge 2 could not be recovered.

7. Under caution, defendant, you admitted that you climbed the scaffoldings of the building and entered the flat through the window.  You had entered the flat in the 2nd charge first and climbed down the scaffolding again and entered the flat in the 1st charge.  When you were about to leave the flat in the 1st charge you came to know that someone had attempted to open the door of the flat and therefore you secured the door with the door chain and left the flat by the window.  You then climbed up to the rooftop of the building and subsequently came back down in the staircase and were intercepted by police.  You admitted you committed those two burglaries alone. 

8. Mr Lam, your solicitor, has made full mitigation on your behalf this morning and I have taken into account what he has had to say.  I have also taken into consideration your letter you have written to this court showing your remorse. 

9. You are aged 29 years and have a number of previous convictions; 14 in total of which eight are related to theft and four related to burglary.  Your last burglary conviction was in 2004 which you were at that date sentenced to two separate charges for burglary.

10. Mr Lam has conceded that your record is not a good record but has asked this court to impose a concurrent sentence on the two charges of burglary.  He submits that the two burglaries despite involving two different premises are close in proximity in time and place.  He has submitted two cases for the court to refer to; but has asked this court to impose a concurrent sentence on the two charges of burglary.  He submits that the two burglaries despite involving two different premises are close in proximity in time and place. 

11. The two cases submitted to the court are that of HKSAR v Lui Cho Yiu CACC81/2004 and CACC26/2003 HKSAR v Chow Siu Wang.  I have considered these two cases.  In this particular case these two premises that you burgled were not the same premises.  They were two premises on separate floors.  I accept that they were committed close in time.  I distinguish the case of Chow Siu Wang and this case because the judge described in that case that the second burglary charge was an opportunistic offence and an incidental burglary.  This was not the case in this case before me.  In any event, the Court of Appeal in that case at paragraph 9 stated, “In my view the judge had taken a very lenient view when making the sentence on the two burglaries entirely concurrent.”  And he went on to say, “While the two burglaries were committed on the same day one after the after, two sets of domestic premises were involved.  Had the judge ordered part of the sentence on the second burglary to be consecutive to the sentence on the first burglary he would have been justified to do so.”  It is therefore clear that a sentence of the second burglary could well have been made consecutive. 

12. In respect of Lui Cho Yiu at paragraph 11 the Court of Appeal said, “That although the defendant was charged separately the two burglaries involved adjoining premises sharing a party wall but they were nevertheless satisfied with the overall starting point of sentence of 5 years.  And at paragraph 10 the Court of Appeal again said there that in cases where the offender has a bad record for offences of the same type this may provide an aggravating factor.  In that case the applicant was an experienced criminal.  He was aged 59 at the time of conviction and had been before the court on numerous occasions for theft.  He had also been imprisoned for robbery and, more significantly, he had been convicted on three previous occasions of burglary. 

13. Despite your young age of 29, you are, in my view, an experienced criminal.  You have a number of dishonesty offences and significantly four previous for the similar offence of burglary.  This is a domestic premises burglary for which a usual starting point is 3 years’ imprisonment after trial.  I do find that your bad record is an additional aggravating factor that the starting point should be increased.  I will increase the starting point to 39 months’ imprisonment.  That should be taken on both charges.  And I give you full credit for your plea of guilty and reduce those terms to one of 26 months’ imprisonment.  However, I must consider the principle of totality.  These were two separate and distinct offences on two separate premises and I order 4 months on Charge 2 to run consecutive to Charge 1, making a total term of 30 months’ imprisonment being 2 years 6 months’ imprisonment.