HKSAR v. Chan Yiu Bun

DCCC1162/2010

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO.1162 OF 2010

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Reasons for Sentence

1.The defendant pleaded guilty to 3 charges of burglary, admitted to the summary of facts and was duly convicted.

Facts

2.The defendant was spotted by police officers on anti-burglary patrol at around 10:10pm on 19^th July 2010 alighting from a taxi. The defendant climbed over an iron gate and entered Fat Yuen Management Company Limited in Tuen Mun. The defendant climbed back out at around 10:25pm and was intercepted by the Police.

3.Upon search, a screwdriver was found on his person. The defendant was arrested. Under caution, he said he brought the screwdriver entering Fat Yuen intending to steal. Nothing was in fact stolen from Fat Yuen.

4.Under reminded caution at scene, the defendant also admitted that he had previously entered a Chinese temple (“the Tong”) in Tuen Mun and stole HKD600 and an octopus card from a member of the Tong’s handbag because he had no money for food.

5.He further admitted that he had also stolen HKD100 from the wooden donation box of the Tong on a later occasion, because he had no money for food.

Previous convictions

6.The defendant has 7 previous convictions. The first conviction was for Assault with intent to rob when he was sentenced to 18 months’ probation in 1990, when he was 17 years old. His 2^nd conviction was for burglary in 1996 when he was sentenced to 18 months’ probation.

7.The 3^rd and 4^th convictions were both in 1998 when he was sentenced to further terms of probation for burglary and theft respectively.

8.The 5^th and 6^th convictions were both for theft. He was sent to jail for 3 days in 1999 and then fined $1,000 in 2001.

9.His last conviction was in 2004 when he was sentenced to 1 year and 9 months’ imprisonment in the District Court for burglary.

Mitigation

10.2 psychiatrist reports and then a probation officer’s report were ordered to be prepared on the defendant prior to sentencing. The tenor of the reports is that the defendant does not suffer from any psychiatric illnesses, but he functions in the range of mild mental retardation, with an intelligent quotient of 61.

Sentence

11.It is not disputed by the prosecution that all 3 premises involved in the charges are non-domestic premises.

12.The sentencing tariff for non-domestic burglary is 2 and a half year’s imprisonment.

13.I find that the crimes were not opportunistic crimes. In relation to charge 1, it is stated in the summary of facts that the owner of the handbag placed the handbag near the window and locked all the windows before sleeping. Yet when she woke up in the morning, the handbag was move to the front door of the room, with the cash and octopus card missing. The defendant could not have reached the handbag by chance.

14.In relation to charge 2, the staff member of the Tong had locked the main gate before leaving the Tong. The wooden donation box was inside the Tong when she left. Upon her return, it had been moved to another position, with the padlock securing the box broken and the money missing. Again, the defendant could not have happened upon the donation box by chance.

15.In relation to the 3^rd charge, the defendant brought along a screwdriver and climbed over an iron gate in order to enter the premises to steal and then climbed back out. This is clearly not an opportunistic crime.

16.The nature of the premises in charges 1, 2 and 3 are similar, one being a Tong and the other a columbarium, both are places where people would attend to pay respect to their ancestors as well as to worship. At night, these places tend to be less visited and the defendant had obviously targeted them.

17.I am mindful of the case of Tang Chat v R, CACC 752/1981 where the Court of Appeal took the “unusual course” of imposing a probation order for the appellant who was of lower than average intelligence. There is however one big difference between that case and our present case. In Tang Chat, the appellant had never been dealt with other than by way of a prison sentence in all but one of his previous convictions. The Court of Appeal stated that they were “strongly influenced” by this fact. There were of course other factors taken into consideration including the amount of property stolen was not large, no violence was used by the appellant and that he had only entered unoccupied premises. There the brother and sister-in-law of the appellant were also prepared to take the appellant into their own home and do what they can to find employment for him. For the sake of completeness, it later transpired that the Appellant was in breach of the probation order and the 5 years original prison sentence was re-imposed and activated.

18.In our present case, the defendant had been given ample opportunity to try to stay away from trouble. He was only sentenced to jail for the last conviction, when obviously the court had run out of options if not of sympathy for the defendant.

19.Likewise, I find that given the fact that the defendant does not suffer from any psychiatric illness, given the fact that he knew to bring along a screwdriver and to climb over an iron gate to go stealing, he ought to bear the full consequences of his actions.

Charge 1, 2 and 3

20.Having read the various reports prepared on the defendant, having considered the previous convictions of the defendant and having considered the circumstances of each of the offences, I find that there are insufficient reasons that would allow me to depart from the guideline sentence.

21.I will adopt a starting point of 30 months’ imprisonment for each of the 3 charges. I will grant the defendant the full one third discount for his guilty plea and reduce the sentences to 20 months’ imprisonment.

Totality

22.Given the circumstances of the defendant, I will order that 3 months of each of the sentences in charge 1 and 2 be served consecutively, while the rest of the sentences to be served concurrently. In other words, the defendant is sentenced to a total of 26 month’s imprisonment.