HKSAR v. Chan Wai-hung

DCCC55/2012

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 55 OF 2012

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Before: Deputy District Judge C P Pang

Date: 22 February 2012 at 4.00 pm

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Reasons for Sentence

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1.The defendant has pleaded guilty to one charge of burglary and one charge of assault occasioning actual bodily harm. The facts he admitted reveals that at the night on 18 November 2011, Madam Lee Fung-ming (PW1) and her two daughters went to bed at home which was situated at a flat in Choi Fai Estate, Wong Tai Sin, without locking the roller shutter and the main door.

2.At around 3.30 am on 19 November 2011, PW1 woke up and saw torchlight in the living room.  Recalling that the main door was not locked, PW1 went over to lock it.  When she looked into the kitchen, the defendant rushed to her and attacked her on her left face and left side of her head.  She struggled with the defendant and shouted for help.  She then successfully pushed the defendant to the wall.  Her two daughters woke up and reported the matter to the police.  When PW1 switched on the lights, she saw the defendant was wearing a pair of transparent gloves and holding a torch.

3.Police officers later arrived and arrested the defendant for burglary.  Under caution, the defendant admitted that he went in and made a search of the handbag.

4.PW1 sustained bruising on the left face and swelling on the left side of her head.

5.The defendant is aged 25 and single.  He has a clear record.  He was previously a cinema attendant.  He is living with his mother and siblings in the same building where the offences were committed.

6.In mitigation, the solicitor for the defendant tells the court that it was the defendant’s mother’s birthday and the defendant had consumed some wine that night.  Because of the effect of the wine, he could not sleep and he left his home.  When he walked past the victim’s premises, he noticed that the doors of the premises were not locked and he could see a handbag on the sofa inside.  Out of momentary greed, he went into the victim’s premises to steal it.  His solicitor says the defendant was only an opportunistic burglar, and therefore a lower starting point should be taken by the court.

7.In relation to the second offence, mitigation was put forward that it was an accident.  The defendant did not intend to cause injury to the victim.  He was only putting up resistance in order to escape. 

8.Mitigation letters from the defendant’s mother and siblings have been submitted to and considered by this court, describing the defendant as a filial son and a responsible member of the family.  They ask for leniency of the court.

9.The defendant’s solicitor referred to me two District Court burglary cases in which lenient sentences were passed.  I do not think that the two cases can be of much assistance to this court in the present case.  The defendants in those two cases were convicted and sentenced on entirely different facts which were far less serious than the present one.  In DCCC1088/2011, the two offences were committed in the afternoon.  One of the offences was only an attempted burglary while in the other offence, only a letter was stolen.  The judge accepted that there was no premeditation on the part of the defendant.  In DCCC1268/2011, the premises in question was a deserted building and the offence was committed at 8 am in the morning.

10.The usual starting point for domestic-premises burglary is 3 years’ imprisonment.  It is not a straitjacket.  The defendant has a clear record.  He is not a habitual offender.  The doors of the premises in this case were not locked.  These are factors favourable to the defendant.

11.However, on the other hand, there are aggravating factors in this case.  The burglary was committed in the early hours of the morning, at a time when the defendant would have expected that the premises was occupied and the occupants would be frightened if they found him.

12.It has been submitted that it was an opportunistic burglary as the doors of the flat were not locked.  However, as admitted by the defendant in court, upon seeing the doors being unlocked, he went home and came back with gloves and torch.  It cannot be said that it was a momentary idea to steal.  Rather, it was an act of premeditation.

13.Moreover, PW1 was injured.  Her two daughters no doubt were also frightened.  PW1 sustained bruising on her face and swelling on her head.  I cannot accept that the injuries were caused by accident.  It has been submitted that the injuries were caused to the victim when the defendant was putting up resistance in order to escape.  He did not intend to cause the injuries.  In my judgment, when the defendant deliberately put up violence in order to escape, he knew very well that injuries to the victim during the struggling would be inevitable.

14.Having considered all the circumstances of the burglary, I think the appropriate starting point for Charge 1 should be 3 years and 3 months.  On Charge 2, I take 6 months as the starting point.  The term in Charge 2 should run concurrently with the sentence on Charge 1, being part and parcel of the burglary offence.  The defendant will have the usual one-third reduction for his plea of guilty.  There is no evidence of serious medical condition of the defendant to justify a further reduction of the sentence.

15.The defendant is therefore sentenced to 26 months’ imprisonment on Charge 1 and 4 months’ imprisonment on Charge 2.  The sentences on both charges shall run concurrently.