HKSAR v. Cheng Wai Ming
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DCCC344/2011 IN THE DISTRICT COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION CRIMINAL CASE NO. 344 OF 2011 ----------------------
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-------------------------- Reasons for Sentence -------------------------- 1.The Defendant appears before me this afternoon and have pleaded guilty to a total of four burglary charges, contrary to section 11(1)(b) and (4) of the Theft Ordinance, Cap.210. Those charges were committed in a period between 1 August 2010 to 18 November 2010. They involved at least a total of three different premises which are all situated in the seashore of Cheung Chau: Premises 1 being Kam Hing Shipyard while Premises 2 being Wo Hing Shipyard and lastly, Premises 3 is Kam Hing Engineering. According to the facts, they are all two-storey working houses situated along the seashore and were used for repairing boats. The Facts 2.The value of the stolen property is by no means large. They were only, for the 1st charge, HK$1,800; the 2nd charge, HK$150; the 3rd charge, HK$100; and lastly, the 4th charge, a CCTV camera valued at HK$280. According to the Summary of Facts which have been admitted by the defendant, these burglaries were all committed in the night-time when nobody was inside. As far as Premises 1 is concerned, it is believed that the defendant gained entry into the premises through a hole on the wall which had been covered by a wooden plank. As far as the other two premises were concerned, the defendant prised open the windows and then gained entry into the premises. 3.After the 1st charge was committed, the owner of the first premises did not report the matter to the police. Instead, he arranged for CCTV cameras to be installed. As a result, two cameras were installed at Premises 1 whilst two other cameras were installed at Premises 3 with the consent of the proprietor thereof. 4.It was because of the facial features of the defendant were captured by the CCTV image which led to the final arrest of the defendant by the police on 25 February 2011. After his arrest, he was interviewed under caution by the police, during which he frankly admitted that he had committed all the above four burglaries. He stated that he went into the three premises in night-time when there was no one inside, and he further admitted to stealing cash from those premises. He claimed that he had spent, however, all the stolen money and he further said that in the last charge, namely, the Charge 4, he had taken the CCTV camera and thrown it away in a rubbish bin near Premises 3. Records and mitigation 5.The defendant is now aged 33 years old. He only has Form 1 education level and he is a casual decoration worker by occupation. He had in the past a total of nine previous convictions with three similar burglary records: in 1993, 2002 and 2007. For the first burglary offence, he was sentenced to a training centre whilst for the last two offences, he was both sentenced to a term of 12 months’ imprisonment respectively. He was discharged from prison on 20 July 2007. 6.The defendant is still single. However, he had a son with his girlfriend. The son is now 18 years of age and is still studying. According to the mitigation made by the defendant’s lawyer, Mr Lee, the mother of the son had left the defendant many years ago and the defendant is now living with his mother aged 67 and each month he has to contribute, about one thousand to two thousand dollars to the family whenever he can find a job. 7.Mr Lee prayed in aid the fact that the targeted premises in this case were all non-domestic premises where there was nobody inside when these burglaries were committed. He further submitted that the defendant is not a professional burglar and, rather, he was an opportunist. He also stressed the fact that the defendant was just gaining entry to Premises 1 through what he described as a “dog hole” on a wall of the premises. As far as the other method of gaining entry into the other two premises is concerned, Mr Lee submitted that the defendant only prised open the old windows of those two premises by a wooden stick which he picked up nearby. 8.Mr Lee of course also only relied on the fact that the value of the property involved in all these four charges were relatively small and the defendant had fully co-operated with the police after he had been arrested. The last conviction or similar conviction, Mr Lee said, was already some four years ago, and he had the full support of his family members who had also been present today. Sentencing Consideration 9.Burglary is of course a very serious offence. The Court of Appeal has also laid down the usual tariff for non‑domestic premises and the starting point is one of two and a half years. In HKSAR v Fan Kit Hung [2009] 6 HKC 314, the Court of Appeal, however, said:
Even if I accept what Mr Lee had said that the defendant is not a professional burglar, at least he is a serial burglar. 10.In the present case, there were a number of aggravating features. Over a period of slightly over three and a half months, the defendant had burgled three different premises in four occasions and in respect of the first premises alone, in two different occasions. The defendant himself was also a man of previous conviction records and with three similar burglary convictions so he is a persistent offender. 11.Having said that, I do accept that the target premises is by no way substantial. They are all small workshops and no substantial damage have been done to the premises. I also have to consider the fact that the value of the property which has been stolen in respect of all these charges are very small. They are in total of a sum of HK$2,330 only. 12.I therefore decided that I would only increase the starting point in each offence from 30 months to a total of 36 months. Because of the plea, the defendant is entitled to the full one-third discount, and therefore for each charge, the proper sentence after the reduction is one of 24 months. 13.Lastly, I take into account the principle of totality. In the end, I order that in each charge, that is from Charge 2 to Charge 4, additionally, the defendant has to serve a 3‑month sentence which is to run wholly consecutively to the other charges. All in all, in respect of all the four charges, the defendant will serve a total of 33 months’ imprisonment.
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