HKSAR v. Khong Van Sinh

DCCC762/2009

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 762 OF 2009

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Reasons for Sentence

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1.The defendant, Khong Van Sinh, pleaded guilty before me to one count of burglary, contrary to section 11(1)(b) and (4) of the Theft Ordinance.

2.The defendant admits that on the 1st day of November 1998, in Hong Kong, having entered as a trespasser part of a building known as 2nd Floor, No. 38, Cheung Shue Tan, Tai Po Road, Tai Po Kau, Tai Po, New Territories, he stole therein two mobile phones and cash of $350.

3.The facts reveal that at the material time, Mr Hung (PW1) and his wife were living at 2nd Floor, No. 38, Cheung Shue Tan, Tai Po Road, Tai Po Kau, Tai Po, New Territories. At around 1 am on 1 November 1998, PW1 placed his wife’s and his own mobile phones in the living room and went to bed. When he woke up at around 6.55 am in the morning, he discovered that the two mobile phones, valued at HK$6,000 in total, were missing. He then found out that cash of HK$350 was also missing from his wallet. There was no sign of prising or ransacking. However, the window in the washroom was open. PW1 made a report to the police.

4.Police officers arrived at the premises to conduct investigations. Officer Ng, a police officer attached to the Identification Bureau of the police, attended the premises and lifted a palm print and a fingerprint from the wall tile of the washroom in the premises.

5.Subsequent investigations revealed that the palm print and fingerprint lifted on the wall tile of the washroom in the premises matched those of the defendant. The defendant was arrested by PC59036 (PW3) on 22 April 2009. The defendant denied having committed the offence at a subsequent video recorded interview.

6.PW1 did not know the defendant. At the material time, no renovation work was carried out on the premises and PW1 had not invited anyone to visit them at the premises.

7.At the material time, the defendant entered the premises as a trespasser and stole two mobile phones and cash of HK$350.

8.The defendant had 13 items of previous convictions recorded against him. His conviction records dated back to 1992 and he was last convicted in 2006. The defendant had been convicted for burglary on four occasions. He was also convicted of an offence of attempted burglary in 1999. When the defendant committed the present offence he had then nine previous convictions recorded against him with two previous for burglary.

9.The antecedents statement of the defendant reveals that the defendant is now 44 years and 7 months of age. He was born in Vietnam in 1965. He has not received any formal education in Hong Kong. He has been working as a construction site labourer. He came to Hong Kong in 1988 and he was granted Hong Kong citizenship in 2001. He married in 1992 but later divorced in 2003. He resided alone in San Po Kong at the time of his arrest.

10.Mr Tam in mitigation tells me that the defendant resides alone in Hong Kong. The family members of the defendant, including his mother and his brothers and sisters, are all in Vietnam. Mr Tam tells me that since the defendant’s release from prison in 2007, he has been out of trouble. He works as a construction site worker on a casual basis and he earns around $7,000 per month, of which he would send $1,000 back to Vietnam to support the living of his mother. The defendant has not received any formal education.

11.Mr Tam submits that the last similar conviction was in 1999. The defendant was then a drug addict but he is no longer a drug addict now.

12.In the light of the criminal record, I inquired from the prosecution as to whether the defendant committed the present offence before he committed the offences in DCCC397/99. Mr Beel for the prosecution helpfully submits that from the report number of the offences that concerned DCCC397/99 one can see that the cases were reported to the police in 1999. One can logically deduce from the report numbers that these cases were committed in the year 1999 and hence they were committed after the burglary in the present case. Mr Tam takes no issue with this analysis. In fact, Mr Tam submits that had this case been brought to light in 1999, this case would have been dealt with together with DCCC397/99 and the defendant would have benefited from the totality principle when he had all these matters dealt with together.

13.Mr Tam submits that there were no aggravating features in the present case, as there was no prising and no ransacking of the premises, but he accepts that the defendant committed the offences in the early hours of the day.

14.In the present case, the defendant burgled a residential unit occupied by PW1 and his wife and stole therein two mobile phones and cash $350. This is a case of domestic burglary. It is trite that for a domestic burglary committed by a first offender in the absence of aggravating factors a starting point of 3 years’ imprisonment is appropriate, but obviously the defendant was not a man of clear record at the time he committed the present offence. He had nine previous convictions recorded against him with two similar convictions for burglary.

15.I also find that the present case was aggravated by having been committed in the early hours of the morning at a time when the unit was occupied and when anyone would clearly have been expecting it to have been occupied. In fact, the Court of Appeal made the same observations in the case HKSAR v Tong Fuk Sing [1999] 3 HKLRD 710.

16.In my judgment, a starting point of 3 years and 3 months is appropriate, given the presence of the aggravating factor as found by me. The defendant is entitled to one-third reduction for his guilty plea. That would bring the sentence down to 2 years and 2 months.

17.This case was committed by the defendant in November 1998. From the criminal record of the defendant one can see that the defendant was convicted of two counts of burglary and one of attempted burglary in June 1999 in DCCC397/99. From the report numbers of the offences, I can see that these offences should have been committed by the defendant after he committed the present case. In fairness to the defendant, if the present case was brought before the court in 1999 and dealt with together with the three offences in DCCC397/99, the defendant would be able to benefit from the totality principle and he would not have to serve the full 2 years and 2 months’ imprisonment.

18.For the reason that the defendant is now to be sentenced for an old offence that he committed back in 1998 and for the reason that the defendant cannot now benefit from the totality principle than he otherwise would have been had this case been dealt with together with the three offences in DCCC397/99, I would allow the defendant a further reduction of one year.

19.For the reasons given, I sentence the defendant to 14 months’ imprisonment.