HKSAR v. Ho Yat Man, Joie

DCCC495/2010

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 495 OF 2010

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Reasons for Sentence

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1.This defendant has pleaded guilty to one charge of aggravated burglary, contrary to section 12(1) and (3) of the Theft Ordinance, Cap.210.

2.The facts of this case are straightforward.

3.On 6 April 2010 at about 3.55 pm, some hotel guests staying in the L’hotel Nina et Convention Centre in Tsuen Wan, returned to their hotel room but could not open the door. They asked for hotel staff to assist them. As staff tried to open the door, the defendant suddenly opened it and appeared.

4.As he walked out of the room, he told those standing outside that he had entered the room by mistake. He then tried to walk away.

5.He was, before he left the building, apprehended by hotel security staff, not before he had changed his shirt and discarded a knife, and adhesive tape amongst other items in a stairwell of this hotel.

6.When he was apprehended in the lobby and the police were called, but before they arrived, the defendant threw away some items into a dustbin. They were later retrieved, and an MP3, a USB stick, two plastic straps, and a piece of string were found.

7.The MP3 and the USB had been stolen from the hotel room, and were identified by PW1. The items were not of great value.

8.The aggravated burglary charge comes about because of the knife. He told the police that he had carried the knife to the hotel for self-defence. The string and plastic strap could have been used to tie up people in case it was necessary in the course of a burglary.

9.He fully cooperated with the police, and made a full and a frank admission. He explained that he was in debt to credit card companies to a total amount of $200,000, so he decided to try burglary to find the money to repay his debts.

10.The defendant does not have a clear record, but as good as, because his one previous is a 28-year-old conviction. He was convicted of a theft charge and fined $200. I take into account it was a very long time ago.

11.Since then he has raised and brought up three children with his wife and clearly has a loving family nucleus.

12.He got into financial trouble when he tried his hand at a business which failed.

13.Debts were incurred. He borrowed money on credit cards, and this is where the problem would have been exacerbated.

14.Credit card loans’ interest rates are exceptionally high, and I am sure the defendant was unable to keep up the repayments. He even tried to get a second job, part-time, to try and pay it off.

15.However, I am sure with the amount of debt growing, and being called and visited by debt collectors, led the defendant to act desperately.

16.Instead of telling his family, or being frank with his family, he turned to crime to try and pay off the debt.

17.Clearly this defendant is not an habitual criminal. I have heard full mitigation on his behalf from Mr Wong, and there are certain elements to the mitigation and facts I find very relevant to sentence. These included the following.

18.The defendant has pleaded guilty, which shows remorse.

19.He has a conviction that is very old, and I will treat him as a man of clear record.

20.This burglary he did it by himself alone. It was 3 o’clock in the afternoon, I am sure the defendant did not want to find anybody in the hotel room. He did have a knife and other items, but they were not brandished nor seen by any victim.

21.The elements of an aggravated burglary exist, but on the facts, it is not an aggravated burglary of the worst kind.

22.Burglary of hotel rooms do attract a similar sentence to a burglary of a domestic premises, and I referred myself to the authority of HKSAR v Ng Wai Hing [2003] 2 HKLRD 338.

23.A domestic premises burglary will attract a starting point of 3 years where there is an absence of any aggravating or mitigating factors.

24.Obviously the weapon here is the aggravating factor that led to this charge.

25.Mr Wong for the defence recognises this, and in his mitigation pleads for leniency for the defendant, and asks the court not to consider on these facts one of the worst case kind for this charge.

26.I have had three letters read to me from the defendant and his family members. Family and friends are in court today to support the defendant.

27.The defendant is a lucky man, his family are prepared to forgive him.

28.Having taking into account the facts of this case, the elements I have repeated as relevant, and mitigation put forward, I will increase the starting point of 3 years by 9 months, and take a starting point of 3 years and 9 months.

29.Defendant, please stand up. As you have pleaded guilty, you are entitled to a discount of one-third. After the discount of one-third, you will be sentenced to this offence to 2 years and 6 months' imprisonment.