HKSAR v. Cheng Wai Ho

DCCC183/2010

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 183 OF 2010

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Reasons for Sentence

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1.The defendant pleaded guilty to one charge of burglary and one charge of the offence commonly known as unlawful remaining.

2.In sentencing I have taken into consideration the whole circumstances of the case including its nature and facts, background of the defendant and mitigation put forward on his behalf. I have also considered sentencing precedents.

3.The facts of the case are simple. The defendant is a PRC citizen. He came to Hong Kong unlawfully for the purpose he claimed of looking for a job. In the evening on 21 January 2010 he sneaked into Hong Kong at Huanggang by hiding underneath a cross-border truck. He then went to Tin Shui Wai. Having wandered for some time, he entered the building in question which is a public housing estate premises. He took a lift to the rooftop and climbed along drainage pipe down into the flat in question via the kitchen window. There he stole properties set out in Charge 1. Afterwards he climbed down along the drainage pipe and left the building.

4.The defendant is 42 years of age. He was a factory worker before and since 2002 had been working as a farmer. Counsel for the defence told me that he did not earn enough to support his family and therefore decided to come to Hong Kong to look for a job. Counsel also told me that the defendant did not originally have the motive to steal. He went to the rooftop of the building for the purpose of looking for a shelter. It was only when he noticed an open window that he could not stand the temptation.

5.Even though he stole, he chose not to take away important items such as identity card and credit cards which he knew the loss of which would cause much trouble and inconvenience to the owner.

6.Counsel also stressed that the circumstances leading to the arrest of the defendant indicate his good nature. When he was asked to return the mobile phone by the police officer pretending to be its owner with the excuse that it contained important information, he agreed at once without any offer of or any request for a reward.

7.The defendant burgled a residence in the middle of the night when the presence of the occupants was reasonably expected. What the defendant stole included one mobile phone, two watches and cash of $350.

8.Despite what counsel said on his behalf, in my view, it was definitely not a case of opportunist burglary. Fortunately, the loss he caused the victims was not substantial and his actions had not led to a confrontation which is always the worry in this type of offence.

9.It has consistently been held by the Court of Appeal that a starting point of 3 years is appropriate for an ordinary burglary case committed in domestic premises. AG v Lui Kam Chi [1993] 1 HKC 215 is one of the authorities.

10.Having considered the whole circumstances, I see no reason to depart from the normal range of sentence in this case. I adopt a starting point of 3 years.

11.The defendant pleaded guilty, he is entitled to a one-third discount. He agreed to return the mobile phone upon request. I agree that it reflects somehow the good nature of the defendant. While strictly speaking, it does not amount to voluntary restitution, it led to the easy recovery of the stolen property. For this matter, I give him one month’s discount. There are no other factors which justify any further discount.

12.I sentence the defendant to 23 months’ imprisonment for Charge 1.

13.As regards the charge of unlawful remaining, it is firmly established in the case of So Man King [1989] 1 HKLR 142 that 15 months’ imprisonment should be imposed upon a plea of guilty. Again I see no reason to depart from the tariff and therefore impose a sentence of 15 months’ imprisonment for Charge 2.

14.As a matter of principle, the two sentences should run consecutive to each other (see HKSAR v Tong Fuk Sing CACC216/1999). The Court of Appeal again said in Lau Chiu Kwan CACC213/2001 that such sentences should be wholly consecutive. Against that principle, from time to time partly consecutive sentences were imposed in case the circumstances justified.

15.In all the circumstances I order 13 months of Charge 2 to run consecutively to that of Charge 1, making a total sentence of 3 years. In my judgment, this overall sentence is sufficient to reflect the nature and degree of seriousness of the case and serve the interest of public justice.