HKSAR v. Chan Yiu Hung

DCCC1105/2009

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 1105 OF 2009

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Before: Deputy District Judge Casewell

Date:   9 December 2009 at 12.16 pm

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Reasons for Sentence

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1.The defendant has pleaded guilty to one offence of burglary. He has admitted the facts and I have convicted him of that offence.

2.The facts show that the burglary occurred at a commercial premises and the offence occurred on the early morning of 24 August 2009 at the Goodtaste Hotpot Restaurant which is situated in San Po Kong. Now, the defendant was in fact seen in the early hours of 24 August to be inside the premises and was eventually arrested by police. The defendant appears, from looking at a CCTV camera, to have concealed himself in the premises inside a roast meat stand and when the store was empty he had obviously got out of the roast meat stand and gone out to search if there was anything worth taking. The defendant had equipped himself with gloves and also a surgical mask and his car was nearby. The facts also show the defendant had phoned the restaurant earlier to see if there was a security guard there overnight.

3.The defendant has admitted those facts and they support a conviction for the offence of burglary.

4.The defendant has advanced mitigation. I have seen the defendant’s criminal record. He has a conviction for burglary in 1994, that must have been when he was very young because a Care and Protection Order was imposed. Since then the defendant has been in prison a number of times and not subsequently for burglary. In 1999 he received a 4 year sentence for robbery and also offences involving false imprisonment and obtaining by deception. He was again imprisoned in the year 2000 for 10 months for perverting the course of justice and then in 2007 for trafficking in dangerous drugs when he received 28 months’ imprisonment. The defendant also received further sentences of imprisonment in 2007 and I understand from the antecedent statement that he was discharged from Pak So On Correctional Institute on 13 January 2009. So the defendant has a number of previous convictions and sentences of imprisonment. He is aged 29. He was unemployed on his arrest.

5.As far as mitigation is concerned, I am told the defendant has undergone training to become a construction worker, has been trying to make his way installing satellite receivers, had some difficulty with the poor weather, but it is, he tells me through counsel, his settled intention to try and lead a life without crime in future and does not wish to spend any substantial periods of time in prison again. Clearly he has to serve a term of imprisonment for this offence but it is hoped that his resolution not to commit any further offences can take effect after that.

6.I am told he has a girlfriend who is pregnant in China and a relative, his grandfather who he is close to is apparently suffering from cancer, so he has some difficult personal circumstances.

7.As far as the burglary itself is concerned, no items were in fact stolen and there was nobody inside the premises at the time when the burglary was committed and it was deliberately committed at a time when it was unlikely to be anybody there. There was some degree of planning in order to commit this burglary but it stands alone, it is not part of multiple offences or such like. The defendant’s previous conviction was so long ago it can effectively be ignored for the purposes of sentence.

8.I indicated to counsel for the defence that I did not see there was any factors that exacerbated the sentence in this case beyond what would normally be sentenced, nor perhaps I can add are there any particularly compelling mitigating factors which would alter that sentence. What I have decided to do is take what would be the normal sentence for this offence and then take account of the defendant’s early plea of guilty and his remorse that he has shown.

9.So I will take the starting point of 30 months’ imprisonment and reduce that by one-third to 20 months’ imprisonment and impose a sentence of 20 months’ imprisonment for this offence.