HKSAR v. Fung Cheuk Sang

DCCC313/2011

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 313 OF 2011

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Reasons for Sentence

1.The Defendant has pleaded to one count of burglary, contrary to Section 11(1)(b) and (4) of the Theft Ordinance, Cap. 210.

2.Facts admitted by the Defendant disclose that the owner of Cyber System Technology at Shop No. 82, Shan King Market, No. 1 Ming Kum Road, Tuen Mun, left his premises at about 1830 hours on 16 February 2011, after securing the roller shutter.  At about 0245 hours on 17 February 2011, patrolling police officers heard noises coming from the shop and monitored the premises.  At about 0250 hours, the Defendant was seen moving several boxes out of the premises through the rooftop of the premises.  He was intercepted by the police officers for inquiry.  When intercepted, the Defendant was wearing gloves.  He was searched and had on himself a walkie talkie, Exhibit 1, a case of printer ink, Exhibit 2, a USB cable, Exhibit 3 and a torch, Exhibit 4. Police officers found on the rooftop of the premises 3 computer monitors, Exhibit 5, and one computer case, Exhibit 6.  Police officers also found a hole on the metal net which covered the rooftop, and they found a metal bar beside the hole.  Upon inquiry and under caution, the Defendant admitted stealing Exhibits 1, 2, 3, 5 and 6 from the premises.

3.The Defendant is aged 49 years and has attained education up to Form 5.  He is now in his third marriage – he lives with his wife and their two children aged 9 years and 5 years in a public housing unit.  Prior to his detention, he worked as a taxi driver on a casual basis and earned HK$4-5,000 a month.  Because of his poor financial situation and out of greed, he committed the present offence.  He is the sole provider for his family, and obviously, his being imprisoned will be difficult for his family.  The Defendant is not a man of clear record – his record dates back to 1982.  He has had 7 previous court appearances with 11 previous convictions, of which 2 are dishonesty related.  His last conviction was in 2005 when he was sentenced to 2 weeks’ imprisonment for an offence of assault occasioning actual bodily harm.

4.Upon his arrest, the Defendant made a full confession to the police.  His plea today also reflects his remorse.  Save for his plea, there is really little mitigation of weight before me. 

5.The proper starting point in a case of burglary of non-domestic premises in the absence of aggravating or mitigating factors for an adult offender of clear record is 2 years and 6 months’ imprisonment: R v Wong Man [1993] 1 HKC 80 and Secretary for Justice v Tsang Hon-yin AR 5/2004. I can see no reason to depart from this. 

6.Having considered all that had been urged upon me, in my view the appropriate starting point is one of 2½years’ imprisonment.  He is entitled to the usual one-third discount for his plea.  He is sentenced to 20 months’ imprisonment.