HKSAR v. Ngai Yiu Choi

DCCC914/2010

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 914 OF 2010

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Reasons for Sentence

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1.The defendant pleaded guilty to 1 charge of "Attempted burglary" (Charge 1) and 1 charge of "Assault occasioning to actual bodily harm" (Charge 2).

Summary of Facts

2.Mr. LEUNG (PW1) resides at Room 106, Lei Lung House, Lei Yue Mun Estate in Kwun Tong.  At 8:30 am on 17 June 2010, PW1 left his place and no one else was home.

3.Madam LO (PW2) resides at Room 115, Lei Lung House.  About 6:50 pm on the same day, she saw the defendant, who was wearing a surgical mask, standing at the podium outside PW1's flat.  PW2 reported the matter to a security guard Mr. CHAN (PW3).  PWs 2 and 3 went to the 1^st Floor rear staircase together and discovered that the padlock of the window leading the podium broken.

4.Suddenly, the defendant entered into the staircase from the podium through the said window.  He used a spanner to attack PW3.  PW3's right hand was hit once when he warded off the attack.  PW2 immediately returned home to seek help from her husband, Mr. LAI (PW4).  Upon arriving at the scene, PW4 snatched the spanner from the defendant.  PWs 3 and 4 subdued the defendant.

5.The defendant agreed not to run away, so PWs 3 and 4 put less pressure on him.  The defendant took the opportunity and ran up the stairs.  PW3 gave chase and informed his colleagues.

6.About 2 minutes later, PW2 found the defendant in the Ground Floor lift lobby of Lei Lung House.  PWs 2 and 4 then chased after him.  Another security guard, Mr. YU, intercepted the defendant.  He was later arrested by the Police.

7.PW1 returned home at 7:15 pm on the same day and found the glass of his bedroom window broken, but the window was still locked.  No property was found missing.  PW3 sustained mild abrasion and mild tenderness on his right thumb.

8.Under caution, the defendant admitted that he committed burglary at the said location because of his drug addiction.  He followed a resident to enter into Lei Lung House.  He cut the padlock of the window in order to gain access to the 1^st Floor podium.  He brought with him a screwdriver for opening locks, and a spanner to break the window to gain access to the flat.  He also brought a pair of gloves to avoid leaving his fingerprints, and wore a surgical mask to cover his face.  He tried to break the window of the flat, but did not go inside.  He assaulted PW3 when struggling with him.  He denied having burgled any other premises.

Mitigation & Sentence

9.The defendant is now 51.  He has 13 conviction records including numerous "Robbery" offences, 1 "Burglary" offence and 1 "Going equipped for stealing" offence.  He is single and resides with his mother and 2 siblings.

10.Mr. CHIU submitted that prior to his arrest, the defendant was a minibus driver earning $4,000 to $5,000 per month.  Mr. CHIU stressed that there was no loss of property in this case and the injury sustained by PW3 was minor.  The contents of the defendant's letter are noted.  He claimed that he committed the present offences because of his drug addiction.

11.I note that the defendant's previous "Robbery" convictions all took place in the mid-70s and the early 80s.  His only "Burglary" conviction also took place back in 1998.  However, his "Going equipped for stealing" conviction took place recently in September 2009.

12.The defendant has been sentenced twice to the DATC in 1998 and 2001 respectively. He should know better than anyone how much trouble his drug addiction would bring him.  Time after time, the court has expressed in very clear terms that if not an aggravating factor, drug addiction is absolutely not an "excuse" or a mitigating factor for committing a crime.  I cannot stress this message enough.

13.The normal starting point for domestic burglary is 3 years imprisonment.  I have borne in mind the comments made by the Court of Appeal in HKSAR v Po Yan Chuen [2002] 2 HKC 172 on "Attempted Burglary".  The facts in the present case clearly indicated that PW2 was alarmed by the defendant's activities.  Although the defendant's attempt to burgle PW1's home was unsuccessful, it makes no difference in terms of sentencing.  I consider the appropriate starting point for Charge 1 to be still 3 years imprisonment. One-third discount is given for his guilty plea, reducing the sentence to 2 years.  Apart from this, I see no other mitigating factors which warrant any further reduction.  The sentence for Charge 1 is 2 years imprisonment.

14.For Charge 2, the defendant assaulted PW3, a security guard who was performing his duties, with a spanner.  It is a serious matter.  It is most fortunate that PW3 sustained only minor injuries.  I adopt a starting point of 6 months imprisonment.  One-third discount is given for his guilty plea, reducing the sentence to 4 months.  Apart from this, I see no other mitigating factors which warrant any further reduction.  The sentence for Charge 2 is 4 months imprisonment.

15.In my view, Charges 1 and 2 are separate and distinct.  Charge 2 could have been completely avoided had the defendant controlled and surrendered himself. Notwithstanding the totality principle, I consider it just and appropriate to order the 2 sentences to be served consecutively.  In other words, the total prison term for both charges is 2 years and 4 months.

Application for leave to appeal by the Defendant to Court of Appeal dismissed. Please refer to CACC370/2010 dated 1 June 2011