HKSAR v. Chow Yuet Kwong

DCCC102/2009

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 102 OF 2009

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Before:   Deputy District Judge Tallentire

Date:     22 May 2009 at 10.27 am

Offence:  Attempted burglary (企圖入屋犯法罪)

Reasons for Sentence

1. Defendant, you pleaded guilty to one offence of attempted burglary contrary to sections 11(1)(a) and (4) of the Theft Ordinance Cap.210 and section 159(g) of the Crimes Ordinance Cap.200.  The brief facts were as follows.

2. The Chun Tat Restaurant is situated at Ng Lau Road at Tuen Mun.  It is on the ground floor.  The restaurant is owned by a Mr To Ki-chung.  The front of the building was part of the restaurant which was covered by a canopy.  Tables and a cash drawer were placed therein. 

3. In the early hours of 15 December last Miss Chan, who lives across the road on the 1st floor of the building opposite, saw a Chinese male wandering under the canopy furtively.  She reported the matter to the police and continued to watch.  She saw the male checking the cash drawer.  He then left the restaurant on a bicycle.  PC45599 attended the scene and found you about 30 metres from the restaurant.  He detained you at that stage.  You claimed to be looking for a friend. 

4. CCTV footage was checked and a person whose appearance matched yours was seen looking through the cash drawer, and to take something out and replace it.  He then wiped the cashier table with what appeared to be a towel.  PC45599 arrested you for burglary.  Under caution you admitted entering the restaurant to see if there was anything to steal.  Later interviewed under caution you admitted entering the canopy area, ransacking the cash drawer and finding some keys which you used to try to open a glass door to the main body of the restaurant.  You failed and you replaced the keys in the cash drawer.  You cleaned the area of the cashier drawer to remove any fingerprints. 

5. You admitted to 34 previous convictions, seven of which related to burglary.  Those convictions are either drug offences or minor acts of dishonesty. 

6. On your behalf, Mr Andrews submitted mitigation.  He told me that you are 44 years of age and a drug addict who has spent much of his life in prison for either drug related offences or petty acts of dishonesty.  He told me that the petty acts of dishonesty were largely to obtain money to fuel your drug addiction.   Mr Andrews asked me to view this as an opportunist act of theft rather than a true attempted burglary based on the particular facts of the case.  I was told that what actually happened is this.  You were cycling home from Tuen Mun.  You were hungry after not eating that day so you decided to check the outside of the restaurant to see if you could find any food.  In the course of checking the cash drawer you came across some keys which you unsuccessfully used to try to enter the inside area of the restaurant.  You replaced those keys and left.  I accept that version of events. 

7. Mr Andrews submitted the case of HKSAR v Cheung To Ming CACC406/2005 in support of this proposition.  However, I do find that that was a somewhat different scenario in that in that case the defendant was hungry, he was passing non-domestic premises the door of which was ajar those premises having previously been burgled and he entered and took two packets of noodles. 

8. In the present case there is a conscious and deliberate attempt to use keys to open a locked door and thereafter had you been successful you would have burgled the premises.  I do accept the initial approach was opportunistic and there was no element of planning.  I also accept that your motive was that of hunger. 

9. Taking into account the facts of the case, the mitigation and noting your appalling criminal record which does not lead me to enhance the penalty but a recognition that you are a person who readily turns to crime.  I do find that the normal recognised starting point of 2½ years’ imprisonment is excessive in the circumstances.  However, I am of the opinion that 18 months is not adequate to reflect your criminality. 

10. Therefore, I take as a starting point 2 years’ imprisonment reduced to 16 months for your plea of guilty.  You will go to prison for 16 months.