HKSAR v. Lam Chi Yan, Eric

DCCC 136/2009

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 136 OF 2009

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Coram: Deputy District Judge Dufton in Court

Date of sentence: 16 July 2009

Charge: Burglary (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 burglary of the home of Mr Kwan Tse-ngon, contrary to section 11(1)(b) and (4) of the Theft Ordinance, Chapter 210.

2.Full particulars of the offence are set out in the admitted facts.  Briefly the defendant came to know Mr Kwan in 2005 through a mutual friend.  Thereafter Mr Kwan and the defendant became friends with   Mr Kwan employing the defendant to assist him at construction sites.  In about March 2007 the defendant told Mr Kwan he had no place to live because his relationship with his family had deteriorated.  Mr Kwan allowed the defendant to stay in his home and gave him a set of keys so he could stay whenever he needed to.  In late 2007 the defendant having been assigned a public housing unit moved out of Mr Kwan’s home but did not return the keys to Mr Kwan.

3.In the afternoon of the 29th May 2008 the defendant used the keys to enter the home of Mr Kwan and stole one travelling bag, one digital camera, one watch, four rings, HK$4,920, AUS$100 and THB$2,000.   The total value of the stolen items is about $25,000, none of which have been recovered. 

4.The defendant says because Mr Kwan owed him $8-10,000 in wages he went to his home that day with intention to steal.  The defendant accepts he was not allowed to recover his wages by stealing Mr Kwan’s property.  The defendant had thereby exceeded the permission given to him in 2007 and entered the home of Mr Kwan as a trespasser, with intent to steal.

5.The prosecution do not however accept that Mr Kwan owed any money to the defendant.  Whether or not the defendant stole the property of Mr Kwan because he was owed wages is, in my view, in the circumstances of this case, not material to sentence.  This only goes to explain the commission of the offence.  I am therefore satisfied the holding of a Newton enquiry is not necessary and proceed on the basis put forward by the defendant.

6.The correct starting point for a single burglary of domestic premises committed by a first offender of full age where there are no aggravating or mitigating features is three years imprisonment (see Attorney General v LUI Kam-chi [1993] 1 HKC 215 as applied in Attorney General v LO Ching-fai [1996] 2 HKCLR 20).

7.In my view there are two aggravating features.  First there is an element of breach of trust in the defendant using the key given to him by Mr Kwan (see HKSAR v CHENG HO-wai CACC 78/1998 and HKSAR v CHEN Ting-fang CACC 221/2007). 

8.Second the defendant is properly to be regarded as a persistent offender having eight convictions for offences of dishonesty, the last three all being for burglary (see HKSAR v CHAN Pui-chi [1999] 2 HKLRD 830). 

9.Taking into account these aggravating features I am satisfied the proper starting point after trial is to be increased by 6 months to 3 years and 6 months imprisonment.

10.In passing sentence I have carefully considered everything said on the defendant’s behalf by Mr Leung together with the letter submitted by the defendant.  Giving the defendant full credit for his plea of guilty he is sentenced to 2 years and 4 months imprisonment.