HKSAR v. So Hoi Kong

DCCC1123/2009

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 1123 OF 2009

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Reasons for Sentence

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1.The defendant has pleaded guilty to two counts of burglary and one count of theft. The first burglary was committed on 18 July this year, the second burglary was 17 August. The third charge arose from the defendant stealing a Dah Sing Bank Visa credit card and using it at an ATM machine within a very short period of time.

2.In relation to Charge 1, the offence clearly took place during the day. PW1 was actually asleep in the living room on the sofa when the defendant entered and burgled the premises. The defendant ransacked both bedrooms and left the premises without PW1 waking up.

3.The value of the items stolen in that premises was just under $7,000.

4.The defendant left two fingerprints on a wooden cabinet in one of the bedrooms.

5.One month later the second burglary took place. The victim, PW2, was asleep during the day in a bedroom. He awoke to find his rucksack which he had left in the living room had been stolen. Clearly the defendant entered the premises with a key which was kept underneath an incense holder outside the main door. The key was subsequently found to be missing.

6.Amongst some documents and personal items this witness suffered a loss of over $10,000. He suffered a further loss of $10,000 from his credit card account when the defendant used it at a DBS Sheung Shui ATM machine. This was made possible by the PIN number of this card being written on a piece of paper kept in PW2’s personal belongings.

7.CCTV installed at the building of this second premises captured a male resembling the defendant leaving the building. CCTV at the ATM machine in Sheung Shui also captured a male withdrawing cash with this card at the material time.

8.The defendant was then arrested a few weeks later and remained silent under caution. However, in subsequent record of interviews the defendant made full admissions.

9.The defendant’s best mitigation is his plea of guilty today.

10.Mitigation has been put forward on the defendant’s behalf. It has been explained that he was released from prison for his last burglary offence in December 2008. The defendant tried to stay away from crime and did have full-time employment until May, when he was made redundant. Within a short period of time his wife and 6-year-old son also left. This was a double blow to the defendant. The defendant then got into financial difficulties, became desperate and committed these offences.

11.The defendant has a poor criminal record. He started to commit offences and be remanded in institutions from a young age. The first burglary-related offence was an attempted burglary conviction in 1997. Thereafter he was convicted of burglary in 1999, 2001, 2003, and lastly, in 2006. As I said, he was released in December 2008.

12.This poor criminal record would point to the defendant being a persistent offender, a recidivist. I have been referred by defence counsel to two authorities, Attorney General v Lo Ching Fai [1996] 1 HKC 747, and HKSAR v Hui Chi Tong, CACC414/2007, to assist me in sentencing.

13.I have considered both authorities and taken them into account. However, the authority of Hui Chi Tong can be distinguished in part to the case here. Unlike that authority, my view is the defendant in this case today is a persistent offender. In this case, the police had, in relation to the first offence, fingerprint evidence, and in relation to the second offence, CCTV evidence. The police did not require the defendant’s full co-operation to link him to these two burglaries.

14.Also, the similarity of the day time burglaries exist but, in this case, there were sleeping persons in the premises at the material time. Luckily, neither PW1 or 2 woke up and were confronted by the defendant.

15.In relation to Charge 2, I do not accept the defendant came across the premises and burgled it as an opportunistic thief. To enter the premises I am sure the defendant used the key which was under an incense pot. The defendant was clearly looking for an opportunity to burgle, not that he stumbled across an opportunity to burgle. There is a difference.

16.I do take into account the amount stolen in Charge 3, $10,000. It was put forward on his behalf that he only took $10,000 as he did not want to clean out the victim. With respect, I look at the amount stolen, not whether the victim could afford to lose $10,000.

17.In domestic burglaries, a 3 year starting point is the norm where there is an absence of aggravating or mitigating factors. However, I do find that the defendant’s record is an aggravating factor.

18.I took into account the authority of HKSAR v Chan Pui Chi [1999] 2 HKLRD 830. This allows me, in my view, to depart from the normal starting point of 3 years.

19.After considering mitigation and the facts of this case, in relation to Charges 1 and 2, I will take a starting point of 3 years and 6 months, and in relation to Charge 3, I take a starting point of 2 years’ imprisonment. The defendant is entitled to a discount of one-third for his plea.

20.Defendant, please stand up. For Charge 1, I impose a sentence of 28 months’ imprisonment; Charge 2, I impose a sentence of 28 months’ imprisonment; Charge 3, I impose a sentence of 16 months’ imprisonment.

21.I have taken into account the totality principle and 8 months of Charge 2 will be ordered to run consecutively to Charge 1 and the balance concurrently. Charge 3 I order to be served concurrently to Charges 1 and 2.

22.That accordingly is a total sentence of 36 months - a 3 year sentence.