HKSAR v. Cheng Po Ming

DCCC287/2009

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 287 OF 2009

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Reasons for Sentence

1.The defendant, Cheng Po-ming, appears before me and pleads guilty to two charges of burglary (Charges 1 and 2).  The 1st charge took place on 8 January 2009, whereas the 2nd charge took place on 13 January 2009.  In both cases, the defendant entered as a trespasser of the Chinese University Law College located at Bank of America Tower, 12 Harcourt Road, Central, Hong Kong, and stole therein properties particularised in both charges.

2.For the 1st charge, on 8 January 2009 at 3.45 pm, PW1, Miss Cheung Cham-man Charmine, went to the Common Study Room 218, located at the 2nd floor, Chinese University Law College, Bank of America Tower, 12 Harcourt Road, Central, Hong Kong, for self-study.  The room was unlocked and the victim placed her handbag on the table and left the room to buy some snacks.  She returned to the room in 15 minutes’ time and she found her handbag missing.

3.She lost her handbag, which contained a notebook computer, a mobile phone, an iPod, a wallet which contained cash $475, her ID card, one credit card, one ATM card, one student card, one home visit permit and two driving licenses.  The total value of these properties was about $21,000.  Later on the same day, a security guard of the school found her handbag at the rear staircase of the building.  All the contents of the handbag were not recovered.  A report was made to the police.

4.For the 2nd charge, at about 5 pm on 13 January 2009, PW2, Miss Zhang Yufei, was talking with a friend at the student common area at the 2nd floor of the college.  She had placed her handbag behind her.  About 15 minutes later she found her handbag missing.  A report was made to the police.  At about 6 pm on the same day, the police found a handbag at the rear staircase of the building.  However, the victim’s wallet was not recovered.  At the material time the wallet contained the victim’s Hong Kong ID card, student card, $700, one Octopus card, one Master card, 3 Visa cards and four bank cards.

5.The CCTV of the college captured a male, later identified to be the defendant, taking away the victim’s handbag from behind at the material time.  At 2.10 pm on 6 February 2009, while PW3, PC34653, was on anti-theft observation at the college he spotted the defendant acting furtively at the 1st Floor.  The defendant was seen looking around the college.  PW3 then stopped the defendant for inquiries.  At this juncture the defendant confessed that as he was unemployed he came to the college planning to steal things.  PW3 thus arrested the defendant under caution.  The defendant admitted the same to PW3.

6.During a cautioned interview, the defendant admitted the offence into the 1st charge.  He confessed that he had spent all the cash and sold the notebook computer, the iPod and the mobile form.  He discarded all the remaining stolen items.  During a subsequent interview, the defendant admitted having taken away PW2’s handbag.  After sealing the handbag he took out the wallet and disposed of the handbag at the rear staircase of the building.  At the material time the defendant entered the college as a trespasser.

7.Between the years 1985 and 2009 on eight occasions the defendant had been convicted of 15 offences.  He had been convicted of 7 counts of burglary in 1985.  In 1998 he was convicted of theft from a vehicle.  In the same year, on another occasion he was convicted of two counts of theft.  In March 2000 he was convicted of theft.  In November of the same year he was convicted of going equipped for stealing.  His last conviction took place in 2009.  In February this year he was convicted of one charge of burglary and was sentenced to 22 months’ imprisonment.

8.The antecedents of the defendant shows that he is now aged 42.  He received primary education in Hong Kong.  In the past he had worked mainly as a part-time cleaning worker.  Before the defendant’s incarceration he was living with his mother aged 72.  He has two daughters aged 19 and 17.

9.In mitigation, Mr Li told me that the defendant used to work as a cleaning worker.  He had been so employed for almost eight years until September last year.  He quitted the job as his elder daughter had just given birth to a baby at that time and unfortunately the elder daughter was suffering from post-natal depression.  The defendant all along was the main breadwinner for the family.  He had to support his ageing mother and two daughters.  The younger daughter had also given birth to a baby and the defendant was the only person who was taking care of his mother, two daughters and two grandchildren.

10.Although the defendant was under stress financially, he had to quit the job in order to look after his elder daughter.  Mr Li told me that driven by the circumstances and financial hardship, the defendant broke the law again in September last year.  For the offence of burglary he was sentenced to 22 months’ imprisonment in DCCC 889 of 2008.  Mr Li told me that since the defendant was sentenced for the case of going equipped for stealing in 2000, he had mended his ways and led an law-abiding life for almost eight years before he committed the burglary in 2008.  Mr Li accepts when the defendant committed the present burglaries he was on bail of DCCC 889 of 2008.

11.Mr Li, in mitigation, submits that the defendant pleaded guilty to both charges.  Mr Li submits that apart from the confessions made by the defendant there was, in fact, little evidence implicating the defendant for the two charges.  For the CCTV recordings in relation to Charge 2, Mr Li submits that the quality of the images was poor.  The defendant had confessed to the offences immediately upon interception.  For the two burglaries, Mr Li submits that no damage was done to the premises in question and the burglaries were non-domestic in nature.

12.Mr Li urges me to bear in mind the totality principle.  The defendant was sentenced to 22 months’ imprisonment in February this year.  The two burglaries in question were committed in January this year, shortly before the defendant was sentenced in DCCC 889 of 2008.  Mr Li submits that appropriate reduction should be made.

13.It is well settled that for burglary of non-domestic premises, for a first offender, the appropriate starting point is 2

14.In my view, a higher starting point is called for for both offences.  In my view, for Charge 1 and Charge 2, a starting point of 36 months is appropriate.  I am aware that the defendant is not a man of clear record.  In fact, his criminal record is appalling.  I am aware, however, of the fact that since his penultimate conviction in 2000 there had been a long lapse of eight years before the defendant committed the burglary for DCCC 889 of 2008.  I am not prepared to enhance the sentence because of the criminal record of the defendant.

15.For the guilty pleas and co-operation of the defendant, I think the defendant is entitled to a full one-third discount.  I am aware of the financial difficulties and family problems of the defendant.  However, these matters do not count as mitigating factors.  The defendant should have thought about the welfare of his family members before he committed the offences and he had no excuse to pass on his difficulties to the victims in this case.  Mr Li submits that there was no damage to the premises in question.  No doubt, if there were other aggravating features, a higher starting point would be considered.

16.For the reasons given, for Charge 1 and Charge 2 I take 36 months as the starting point.  I will allow the defendant one-third reduction because of his guilty pleas and full co-operation.  For Charge 1, I sentence the defendant to 24 months’ imprisonment.  For Charge 2, I sentence the defendant to 24 months’ imprisonment.

17.I have borne in mind the totality principle.  Charge 1 and Charge 2 were committed within days.  In principle, sentences for Charges 1 and 2 should be consecutive.  In my view, there is no reason why the defendant who committed two cases of burglary should receive the same sentence as if he had committed only one.  Still, I have to consider the totality principle.

18.In my judgment, a total sentence of 32 months should reflect adequately the overall criminality for both offences.  To achieve that end, I order eight months for Charge 1 to run consecutively to the sentence for Charge 2.  The defendant is now serving 22 months’ imprisonment for DCCC 889 of 2008.  The defendant committed the two burglaries in question shortly before he appeared in the District Court for DCCC 889 of 2008 in February.

19.In the circumstances, one has little sympathy for the defendant.  Nevertheless, had the two cases been dealt with by the same sentencer, the defendant would have had the benefit of totality considered by the same judge.  In the circumstances, I order 22 months of the sentence for the present case to run consecutively to the sentence that the defendant is now serving for DCCC 889 of 2008.