HKSAR v. Au Wan Hong

DCCC 308/2009

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 308 OF 2009

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Coram: Deputy District Judge Dufton in Court

Date of plea: 29May2009

Date of sentence: 29 May 2009

Charges: Attempted burglary and burglary (企圖入屋犯法罪及入屋犯法罪)

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REASONS FOR SENTENCE

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1.The defendant pleads guilty to one charge of attempted burglary  (charge 1), contrary to section 11(1)(a) and (4) of the Theft Ordinance, Chapter 210 and one charge of burglary, contrary to section 11(1)(b) and (4) of the Theft Ordinance.

2.In summary on the 16th March 2008 two clinics in Kelly Commercial Building, Nathan Road, Yau Mai Tei were burgled.  The burglar failed to gain entry to Room 801 (charge 1) but succeeded in entering Room 1804.  A drawer was prized open and $900 cash was taken out of a plastic bottle.  A fingerprint of the defendant’s left fore finger was lifted from the plastic bottle.  CCTV cameras also showed a male wandering furtively on the 8th floor at around 14.25 on the 16th March 2008. 

3.The defendant was arrested on the 18th August 2008 when he identified himself as the male on the CCTV and admitted trying to break into Room 801.  Having failed to enter the defendant then went to the 18th floor where he succeeded in entering room 1804 and stole the cash, which he spent on meals. 

4.The correct starting point for a single burglary of non-domestic premises committed by a first offender of full age where there are no aggravating or mitigating features is two years and six months imprisonment.  Where the defendant has committed more than one offence of a similar nature at different times a higher sentence than if there had been only one offence is appropriate (see Attorney General v LUI Kam-chi [1993] 1 HKC 215 as applied in Attorney General v LO Ching-fai [1996] 2 HKCLR 20).

5.The defendant is properly regarded as a persistent offender having committed no less than sixty-eight burglaries (see HKSAR v CHAN Pui-chi [1999] 2 HKLRD 830).  I am satisfied the proper starting point after trial for both charges, no distinction being drawn by reason that one was an attempt, is 3 years and 6 months imprisonment (see HKSAR v CHAN Kwong-chun CACC 299/2008). 

6.In passing sentence I have carefully considered everything said on the defendant’s behalf by Mr Chan, including that the defendant suffers from mental disability and that as a result of an argument with his family he left home and being in need of food committed the burglaries in search of money to buy food.  I also take into account the defendant was cooperative when arrested by the police. 

7.Giving the defendant full credit for his pleas of guilty he is sentenced to 2 years and 4 months imprisonment on each charge.  Taking into account totality of sentence I order 6 months on charge 1 to be served consecutively to charge 2 making a total sentence to be served by the defendant of 2 years and 10 months imprisonment, which I am satisfied properly reflects the defendant’s criminality on these two charges.

8.The defendant is however presently serving a total sentence of 54 months imprisonment imposed in DCCC 342/2008 in June of last year for three offences of burglary.  I have had the opportunity of reading the reasons for sentence in that case.  The three burglaries were committed between the 19th and 26th March 2008 shortly after the commission of the burglaries the defendant is before the court for today.

9.The court earlier in imposing a total sentence of 4 years and 6 months imprisonment meant an overall starting point of 6 years and 9 months, almost the maximum sentence a District Court can impose.  The defendant in a space of 10 days committed a total of four non-domestic burglaries, one of which was an attempt and one attempted burglary of domestic premises.  Notwithstanding the defendant’s appaling criminal record I am satisfied if he had been sentenced for all five burglaries the overall starting point would not have been any higher.  Accordingly I order the sentences imposed today to be served wholly concurrent to the sentence he is now serving.