HKSAR v. Chan Ka Wah

DCCC990/2010

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 990 OF 2010

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Before: H H Judge Anthea Pang

Date: 10 February 2011 at 11.05 am

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Reasons for Sentence

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1.The Defendant was convicted after trial of one charge of burglary, contrary to section 11(1)(a) and (4) of the Theft Ordinance, Cap. 210, and one charge of wounding, contrary to section 19 of the Offences against the Person Ordinance, Cap. 212.

2.I have detailed the facts of the case when giving my verdict and I shall not repeat all of those here. To put it shortly, the Defendant burgled into the premises particularized in the charge in the small hours of 5 July 2009 while there was no one inside. When PW1, the occupant, later returned, the two had a struggle during which the Defendant grabbed hold of a ketchup bottle from a nearby cabinet and hit PW1’s head with it, causing the glass bottle to break into pieces. As a result of this attack, PW1 sustained 3 laceration wounds on his face and 2 on his scalp which required a total of 15 stitches. In addition, he had one laceration wound on his right middle finger and multiple abrasions on both his hands and forearms.

3.As PW1 failed to identify the Defendant in a subsequent identification parade, the prosecution case rested entirely on the presence of the D’s blood in the staircases which were one floor or so below PW1’s premises and the presence of the D’s DNA on the broken ketchup bottle top which was retrieved from near the main entrance of the building in which the premises were located.

4.The Defendant is aged 67. He is married with two sons and one daughter. The Defendant was unemployed at the time of the offence. He has some health problems including cirrhosis, hearing difficulties, and hypertension. 

5.The Defendant has been before the court on 17 previous occasions. His convictions included 8 burglary/attempted burglary, 3 robbery/attempted robbery, and 4 assaulting police officer/resisting arrest. He was first sentenced for burglary in March 1968 and at present, he is serving yet another term of imprisonment in respect of an attempted burglary for which he was sentenced in December 2009 to 30 months. I am informed that he is due to be released on 3 June 2011.   

6.In mitigation, it was said that as the Defendant is an elderly and is of poor health, and since he has already served a substantial part of his present term, a most lenient sentence is asked for so that he could re-unite with his family at the earliest opportunity.

7.It is well established that for burglary of domestic premises, the tariff is one of 3 years. The Defendant acted alone at the time and there was no evidence to suggest that it was a sophisticated burglary nor that it was well-planned. If not because of the fact that the Defendant is a repeated offender, I would have adopted 3 years as the starting point for charge 1.

8.However, it is clear that the past sentences imposed on the Defendant did not succeed in deterring him from burgling into others’ premises. Putting aside his older burglary records, he was sentenced in June 2007 to 2 years’ imprisonment for burglary but then soon afterwards, in December 2009, he was again sentenced to a term of 30 months’ imprisonment for attempted burglary. It is therefore not too much to describe the Defendant as a habitual burglar who probably used burglary as a means to get himself some financial rewards. The acts of the Defendant would no doubt pose a danger and threat to the occupants of premises, and would also cause them possible financial losses. In HKSAR v Tang Wing Cheung CACC 146/2002 (unreported), where the court was dealing with a persistent burglar, the Court of Appeal adopted a starting point of 3½ years for burglary of domestic premises and reiterated that “persistent offenders who show no interest in attempts to rehabilitate themselves will face longer sentences and the starting point will need to be increased to reflect such aggravating feature.”

9.Therefore, in view of the Defendant’s background, his previous convictions, and the facts of the case, I am going to adopt a starting point of 3½ years in respect of the 1^st charge. The Defendant was convicted after trial, and there being nothing which would warrant a reduction in sentence, I order that he be sentenced to a term of 3½ years for charge 1.

10.Charge 2, the wounding 19 charge, carries a maximum penalty of 3 years’ imprisonment. In this case, the attack was not pre-planned. The Defendant was discovered by the occupant of the premises, PW1, when he was committing the offence of burglary. In order to escape, he then mounted the attack on his victim. However, the Defendant used a glass bottle as his weapon and he hit PW1’s head with it, not just once or twice, but more than ten times. PW1’s evidence was that such then caused him to bleed profusely and, from the photos exhibit P1, it could be seen that there was blood almost everywhere in the living room. In fact, PW1 sustained a number of lacerations on his face and scalp which required a total of 15 stitches. The injuries could not be described as minor. Having considered all the facts of this case, I consider a starting point of 27 months to be appropriate. As the Defendant was convicted after trial and as there are nothing which would warrant any reduction in sentence, he is to serve a term of 27 months for charge 2.

11.However, having considered the totality principle and that the Defendant is now serving another term of imprisonment and has been imprisoned since December 2009, I am going to order that only 12 months in respect of charge 2 are to be served wholly consecutively to the term of 3½ years imposed in respect of charge 1, making a total of 4½ years’ imprisonment and that this term of 4½ years is to be served wholly concurrently with the remaining term of the sentence which the Defendant is now serving. 

Please refer to CACC74/2011 for the relevant appeal(s) to the Court of Appeal.

Please refer to CACC74/2011 for the relevant appeal(s) to the Court of Appeal.