HKSAR v. Chan Ban-kwong

DCCC255/2010

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 255 OF 2010

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Reasons for Sentence

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1.At about 10 am on 23 January 2010, a tenant of the mezzanine floor of No.182 Pau Chung Street, Kowloon City, Kowloon, saw the Defendant climbing through a window into the premises of 1st floor, No.182 Pau Chung Street, Kowloon City, (“the Premises”). He immediately made a report the police.

2.The police officers arrived at the scene at about 10.10 am, and minutes later they spotted the Defendant opening a door of the Premises and coming out. The Defendant was wearing a pair of labour gloves and holding an iron bar and a clipper in his right hand. The police officers intercepted him.

3.Under caution, the Defendant said, among other things, that he saw that there was no one inside the Premises and so he intended to take some old wire and old electrical appliances for sale, and he asked for a chance.

4.The tenant mentioned above then identified the Defendant in the presence of the police officers that the Defendant was the man he saw climbing through a window into the Premises.

5.During a subsequent video recorded interview, the Defendant admitted, among other things, that he used an iron bar to open the door of the Premises and gained entry to it. He intended to steal some old electrical appliances and wires for sale. He did not steal anything inside and he climbed through a window to leave the Premises. He wanted to burgle another premises and so he went through the window, somehow he was afraid of height and he climbed back. Finally, the Defendant went to the Premises a few days ago and found that it was a vacant premises.

6.The property manager of the owner of the Premises went to the Premises on 22 December 2009 for an inspection. He confirmed that he had locked and secured the door of the Premises before he left.

7.The Defendant is aged 57. He has 53 previous convictions with 7 related to theft offences, although the theft related convictions all happened some time ago. After releasing from prison in 2005, he worked as a casual worker and he relied on CSSA assistance to subsist his living. Because of economic pressure, the Defendant intended to go into the vacant Premises to steal some iron wires and electrical appliances for sale.

8.According to established sentencing guideline, burglary of non-domestic premises would attract a starting point of 2½ years’ imprisonment while burglary of domestic premises would attract a starting point of 3 years’ imprisonment.

9.There is no issue that the present Premises is a domestic premises. However, the rationale of having a higher starting point for domestic premises is because there is a danger that the victim of the premises would be staying in the premises and as a result, the burglary may have an impact psychologically on the victim. The Premises in the present case, although it is a domestic premises, has been left vacant, and the factor relating to the impact on victim is not present in the present case.

10.Hence, I am prepared to adopt a lower staring point of 2½ years’ imprisonment. Giving the Defendant one-third discount for his plea of guilty, the sentence is reduced to 20 months’ imprisonment, and this is the sentence I impose in the present case.